Press Round-Up: Regulatory and Professional Discipline – July 2014

7 July 2014

Bar Standards Board (BSB)

The BSB formally submitted an application to become an entity regulator and hopes that this application will be approved by September 2014. The application is supported by a recently published Barristers’ working lives survey which revealed a strong demand for entity regulation and a preference for barrister-only practices as opposed to Alternative Business Structures (ABS).

Baroness Ruth Deech, chair of the BSB expressed hope that once the application was approved, new advocacy focused business models would emerge and flourish, increasing client choice, something she referred to as ‘good news for the public’.

As part of the application process the BSB reported on the suggestions of a number of focus groups as to what types of entities barristers were interested in creating should the application be successful. Suggestion included:

  1. A ‘barrister/solicitor model’ involving the two sides of the profession working in the same form or a pure barrister practice working for solicitors;
  2. A ‘barrister/paralegal practice’ with barristers employing paralegals as support staff;
  3. A ‘chambers entity model’ making pre-existing chambers in to corporate vehicles with  collective ownership, formal governance structures, greater branding and marketability and direct access for corporate clients;
  4. A ‘barrister/spouse model’ where a barrister and his lawyer spouse set up a limited company as co-owners and managers.

At present the BSB has not applied to regulate ABS although there are plans to do so should the application to become an entity regulator be successful.

The BSB have been clear in their application that they are not simply seeking to replicate pre-existing regulatory regimes, for example that of the SRA, and note that there are certain types of risks which are present in the SRA regime, client money, external ownership etc., which have been deliberately excluded from the proposed BSB regime.

Following a successful application the BSB intends to ensure “minimum core requirements” are met by entities before determining by reference to risk analysis, the regulatory objectives and published policies, whether an entity was appropriate for regulation.

In respect of sanction it is intended that the BSB will have the power of disqualification over firms’ employees but otherwise direct any regulatory action at the employer.

Health and Care Professions Council (HCPC)

Following consultations with the College of Operating Department Practitioners, the Association for Perioperative Practice and the public, the HCPC has published revised standards of proficiency for operating department practitioners. It is hoped that the revised standards reflect current practice and include language that is appropriate to the profession.

The Professional Standards Authority (PSA) reported that in 2012-2013 the HCPC met all its Standards of Good Regulation. It was stated that the HCPC’s performance was particularly notable as it had completed the transfer of social workers from the General Social Care Council (GSCC) during this time.
Finally, on 07 January 2014, the Health Committee held an accountability session with the HCPC as part of the Committee’s regular programme of accountability sessions with health and care regulators. At this session Committee gave their support to the HCPC’s suggestion of introducing a negative register for those social care workers found to be unfit to practise.

General Medical Council (GMC)

The GMC hailed as a ‘milestone for stone for patient safety’ the grant of new powers to test the English language skills of licensed doctors in the UK.

The new powers come following a prolonged period of lobbying by the GMC who, since 2010, had expressed concern that European doctors were being allowed to register with a licence to practise medicine in the UK without being asked to evidence their English language knowledge.

Where serious concerns are raised about their ability of a doctor to communicate effectively in English, whether to patients or colleagues, the GMC will now be able to require the doctor to undergo a language assessment regardless of nationality.

Finally, the PSA, in its latest review of Health and Social Care regulation, praised the GMC for meeting all the Standards of Good Regulation, something the GMC has welcomed.

General Dental Council (GDC)

The PSA in their report determined that the GDC are meeting their statutory obligations overall. However, the PSA were critical of the GDC for failing to meeting 8 Standards of Good Regulation (6 in Fitness to Practise (FtP) and 2 in registration).

The GDC has accepted these findings and cites a huge increase in complaints (over 110% in the last 3 years) as the reason for the failings identified. Further, the GDC are hopeful that extra investment in new casework teams and a focus on management of performance will serve to tackle the problems identified by the PSA.

It is hoped a Section 60 Order recently published by the Department of Health will allow the GDC to streamline its fitness to practise processes by introducing case examiners and in doing so deal with some of the issues highlighted by the PSA. It is expected the Order will be in place by May 2015.

Finally, the GDC expressed their extreme disappointment that the draft ‘Regulation of Health and Social Care Professionals’ Bill, was not included in the Queen’s Speech.

Nursing and Midwifery Council (NMC)

The NMC welcomed the PSA’s report and made clear that they were, ‘pleased’ that the NMC had, ‘achieved improvements across each of its regulatory functions’.

Of note the NMC have succeeded in reducing the average time for it FtP investigations by 54%. On average a FtP investigation conduct by the NMC will now last for 9 months.

Despite these improvements in FtP and praise from the PSA, the NMC stated that they found the government’s failure to include the draft ‘Regulation of Health and Social Care Professionals’ Bill, in this year’s Queen’s Speech to be “deeply disappointing” and further stated that the Bill was imperative to better handling of patient complaints.

General Pharmaceutical Society (GPhC)

The GPhC welcomed the PSA’s report and assessment that the GPhC had maintained its performance as an effective regulator and was clear that it would, ‘continue to evaluate [its] internal processes and infrastructure, and look for ways to improve and meet [its] aims more efficiently, particularly around our fitness to practice processes’, where the GPhC met all bar one of the Standards for Good Regulation.

The GPhC, acting in concert with NHS England, MHRA and CQC acted on concerns raised about ‘Healthcare at Home’, a medical delivery company, and conducted an inspection of the systems and processes that Healthcare at Home had in place and whether these were adequate to meet the standards for registered pharmacies.

Ultimately, the GPhC concluded that:

  1. The management of risk was insufficient given the large-scale change arising from an increase in patients and the transfer of responsibilities for distribution
  2. The capacity to take on more patients and deliver new services had not been fully considered
  3. There was insufficient analysis of complaints to identify trends and causes
  4. There were insufficient contingencies for handling increases in telephone enquiries and complaints from patients
  5. Communication with the NHS about the difficulties the company were experiencing was poor.

A further inspection has been scheduled for September 2014 to ensure improvements are made in the above areas.

Finally, the GPhC expressed frustration at the absence of the draft ‘Regulation of Health and Social Care Professionals’ Bill from the Queen Speech  and continued support for the government’s initial analysis that law report was needed  to help drive a modern, effective and consistent approach across regulation.

Solicitors Regulation Authority (SRA)

The SRA have appointed their new Chair, Enid Rowlands. She will take over from Charles Plant on 01 January 2015.

The SRA responded to Professor Gus John's Independent Comparative Case Review, which concludes that BME solicitors continue to be disproportionately over-represented at key stages of the regulatory process and that there was no evidence of direct discrimination, including in the individual cases reviewed, in the way the SRA applied its regulatory policies and processes, stating that they were ‘concerned’ about the disproportionality in regulatory outcomes for BME solicitors.

The SRA stated that they were, ‘We are committed to undertaking the work necessary to identify the underlying causes of that disproportionality and, where it falls within our remit, to address those causes’.

All information correct at the time of press and can be accessed on each of the individual regulators’ websites.

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