Civil Fraud Quarterly Round-Up: Q2 2020
The final report of the Mid Staffordshire NHS Foundation Trust Public Inquiry was published last week. Amongst the 290 recommendations designed to put the patient at the centre of the service, Robert Francis QC made a number of far reaching recommendations that, if taken forward by the Government, could have a profound impact on the way that professional regulators operate their fitness to practise regimes. Julie Norris explores some of the key recommendations and implications for health and social care regulators.
The recommendations in the Report, so far as they are addressed to the professional regulators mentioned above, fall into four broad categories:
During the Inquiry, the relationship between the professional regulators and the Care Quality Commission was closely analysed and found wanting, as was the relationship between the professional regulators and the Royal Colleges (see Recommendation 224). Communication between the professional regulators and the CQC was considered to be inadequate, perhaps hampered by the number of restructuring exercises that the CQC and its predecessors had been through.
Whatever the reason for the existence of the so-called regulatory gap, the key to narrowing it, according to the Report is the establishment of “a mutual system for allowing each other to know of the actions of the others, and to understand their importance and significance for their own responsibilities” (Paragraph 12.113. Recommendations 223, 226 and 234). The Report recognised the importance of professional regulators having full access to CQC information rather than having to wait until a disaster occurs to intervene.
Rather more radically from some perspectives at least, is the call for the Professional Standards Authority for Health and Social Care (PSA) to consider the move towards a common independent tribunal system to “determine fitness to practise issues and sanctions across the healthcare professional field” (Paragraph 12.133). This is something that the Law Commission asked consultees about in its’ recent review of the future of healthcare regulators (Regulation of Health Care Professionals, Regulation Of Social Care Professionals in England, Joint Consultation Paper LCCP 202 / SLCDP 153 / NILC 12 (2012)) and about which the Report urges fresh consideration, notwithstanding the abolition of the Office of the Health Professions Adjudicator (OHPA). If taken forward, this is unlikely to be confined to fitness to practise cases involving the GMC and NMC. Reform here will not be speedy however; a new regulatory regime such as this will require new regulations and a significant restructuring exercise.
The professional regulators are charged with investigating fitness to practise concerns raised against individual practitioners; they are reactive, responding to complaints or referrals brought to their attention. The Inquiry heard that they rarely, if ever, exercise a proactive investigative function and they have not hitherto had systems that were sophisticated enough to track trends in complaints.
Whilst recognising that the GMC and the NMC are emphatically not systems regulators, the Report nevertheless recommends that they both take a more proactive approach to monitoring fitness to practise; tracking trends in complaints and where there are generic concerns raised, commissioning reviews and investigations (Recommendations 225 and 227) in order to establish the identities of individual practitioners involved. The Report recommends joint working between the systems’ and professional regulators to fulfil these functions as well as the publication of clear guidance (Recommendation 222) so that both the general public and trusts are aware of when and how they can make a generic complaint. If this recommendation is carried forward by the government, it would make sense that it be applied to all of the major healthcare regulators, not just those involved in the Inquiry.
The Report also considers that it is “highly desirable” that the NMC introduce a revalidation (Recommendation 229) system similar to that deployed by the GMC, but not at the cost of detracting resources from its existing core functions.
The Inquiry heard that there were very few complaints made by the public about the doctors and nurses involved in the events at Stafford Hospital, and opined that this may be due to the “lack of profile each organisation has” (Paragraph 12.128). The Report recognised that the public are one of the most valuable sources of information about the conduct of health professionals and that the regulators need to undertake more by way of public promotion, making the public aware “at the point of service provision of their existence, their role and their contact details” (Recommendations 230 and 233). These cluster of recommendations will no doubt resonate with all of the professional regulators in this field; the biggest challenge to effective regulation is ensuring that concerns are brought to the attention of the regulator – in this respect, educating the public is key.
Regulation of Healthcare Support Workers (HCSW)
The Inquiry heard evidence that Healthcare Support Workers constitute a very large proportion of the healthcare workforce. They are involved in delivering hands-on care which can be both intimate and sensitive, yet they are largely unqualified (although many are very experienced), unsupervised, usually on modest wages and invariably unregistered.
At the Inquiry, a number of witnesses gave evidence in support of the introduction of statutory regulation of HCSWs, pointing out the inconsistency and confusion that the present regime creates.
The Report recommends that the NMC should ultimately assume responsibility for the setting of education and training standards for Healthcare Support Workers as well as being responsible for enforcing breaches of the Code of Conduct for HCSW (Recommendations 209-212). Until the NMC has addressed the concerns raised in the past about its’ administration (see also Recommendation 228), the report recommends that the Department of Health undertakes these functions.
Few working in, or on the periphery of, professional regulatory authorities, will be surprised at the recommendations in the Report; the GMC has already begun to take steps to address some of the concerns highlighted by the Inquiry (revalidation being an important example), and the Law Commission has already consulted on the harmonisation of the fitness to practise regimes of the healthcare regulators. Implementation of these proposals by the professional regulators will require however, at the very least, recruitment of experienced staff and the introduction of new data systems, and at worst, huge restructuring. Either way, financial investment will be required to effect these proposed changes, some of which we anticipate will be met with some resistance.
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