Is regulatory reform back on the agenda, or has it been kicked into the long grass again?

After two years of silence from the Government, and in order to give them a “nudge”, Lord Hunt of Kings Heath secured a second reading debate on the Regulation of Health and Social Care Professions etc. Bill on 3 February 2017.

The Bill was initially drafted by the Law Commission in response to complaints that the regulatory system for health professionals was outdated, overly complex and restrictive. Whilst embracing the majority of the draft Bill, we were told by the Government that

‘the reforms aim to sweep away the out-dated and inflexible decision-making processes associated with the current legislation. The new legal framework would introduce a clear and consistent legal framework which is needed to enable the regulators to uphold their duty to protect the public’.

However since then, the Government have not brought any legislation forwards, and no further progress made.

Timeline to date

• February 2011 - Government published the White Paper ‘Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers’
• February 2013 - Francis Report on events at the Mid Staffordshire NHS Foundation Trust
• The Law Commission undertake work on the legislation covering the regulation of health and care workers, of which there are 32 professions in total which cover approximately 1.44 million people.
• April 2014 - Law Commission publish report setting out its views along with an extensive draft Bill, which aimed at bringing all the legislation covering the various different profession together in one legislative framework. Please see our blog from the time here.
• January 2015 - the Government accepts most of the recommendations made by the Law Commission but provided no time frame for introducing draft legislation. Please see our blog from the time here.

Debate

Aside from the confusion and frustration felt by all those who spoke about the delay, the debate centred around the areas which were most problematic, starkly highlighting just how important and timely this Bill is.

Lord Hunt of Kings Heath began by pointing out that during this period of silence, the Government have nevertheless “ploughed on with trying to make changes in a piecemeal way to individual regulatory bodies”, which he thought would be time better spent drafting a Bill to deal with all the professions together. As he explained, the Mid Staffordshire scandal arose out of a collective failure by several professions. In Lord Hunt of Kings Heath’s eyes, it is illogical to deal with the professions differently when they are so entwined.

Lord Patel and Baroness Walmsley pointed to concerns about the professions who ought to be regulated and aren’t. For example, cosmetic surgery remains unregulated and clinical physiologists have a voluntary register which they are not required to join in order to practise. Some argued that this is rooted in the outdated legislation, such as the Medical Act 1983 and the Opticians Act 1989. This plea is shared by the Regulators who find themselves dealing with conflicting legislation.

Concern was also raised by Lord Turnberg regarding costs, in particular in relation to the GMC who are currently obliged to investigate every complaint they receive (approximately 9,000 a year) a process which could be replaced by a local responsible officer in each Trust. Additionally, hearings are expensive and elongated, and the GMC are prevented from dealing with them quicker even if the doctor admits responsibility and accepts remedial action.

Lord Patel  highlighted how having a single regulatory body for health professionals (which in the UK would include 32 professions or more) would improve knowledge exchange between professions, have efficiency benefits, improve workforce planning and make it easier for the public with only one register to check for all professionals.

Response from Government

Baroness Goldie explained to the House that the Government believe they need to go further than the Law Commissions’ recommendations and intend to bring forward additional policy proposals for public consultation. Baroness Goldie reassured the House that the Government remain committed to these reforms.

Despite the silence, Baroness Goldie explained that improvements had been made in priority areas, such as the changes to the General Dental Council’s investigation-stage process, the Nursing and Midwifery Council’s governing legislation, the establishment of the Medical Practitioners Tribunal Service, and the progress of the Health and Social Care (Safety and Quality) Act 2015 which has also been through Government.

Without providing a time scale, Baroness Goldie explained that they “plan to consult soon on radical reform” and that this would be within the next couple of months. As part of this consultation, the Government will be seeking views on:

• A more responsive model of professional regulation that can swiftly adapt to changing patterns of healthcare, and develop new roles and new ways of working without the need for frequent legislative change;
• Establishing clear criteria to assess which level of professional regulatory oversight is appropriate for different professional groups; and
• Whether the current number and set-up of healthcare regulatory bodies is delivering effective and efficient public protection.

The Government want to ensure:

• That the regulatory bodies have a consistent and flexible range of powers that allow them to take a prompt and proportionate approach to concerns about an individual’s fitness to practise.
• Regulators, working with professional bodies and others, better support professionalism among registered groups and to provide assurance on an on-going basis that practitioners are competent and that their skills are up to date.
• An increase in joint working, sharing functions and services between the regulators.

Baroness Goldie concluded by confirming that views will be sought in the forthcoming consultation on whether there should be a reduction in the number of regulatory bodies and whether a single body should be looked at.

Comment

This much needed debate brought regulatory reform back under the spotlight. Despite the promises from Baroness Goldie, and the ensuing optimism from the House, the debate delicately expressed doubt and concern that the Government would consult on this issue but would not push forwards with draft legislation regardless of the clear outcry for change from all sides.

For further information on the issues raised in this blog, please contact Sarah Harris or Emily Elliott. Alternatively, please visit our Regulatory webpage or contact a member of our Regulatory team.