Professional regulatory hearings - looking ahead to 2016

6 January 2016

Corporate Crime analysis: Julie Norris, partner and head of the regulatory and professional disciplinary defence team at Kingsley Napley LLP, looks ahead to the likely developments in 2016 in the area of professional regulatory hearings.

How is 2016 shaping up in terms of important cases and legislative developments? How will these developments affect your cases and working life?

For our organisational clients

The radical reform of health and social care regulation suggested by the Professional Standards Authority (PSA) this year is long overdue. The healthcare system in the UK faces greater challenges now than it has ever done with issues such as an ageing population, long-term health conditions and a shortage of health and care workers. The disappointment that followed the stalled passing of the Law Commission's Bill on healthcare reform was palpable and it is beyond debate that there no longer remains an arguable case to justify the differences that exist between the nine healthcare regulators overseen by the Professional Standards Authority (PSA). In its 2015 report, Radically Rethinking Regulation, the PSA describes the piecemeal evolution of healthcare regulation and openly states that this has led to 'a vastly complicated and incoherent' system. The PSA argues that regulation today needs a radical approach to meet economic realities, workforce demands and changes to health and care delivery. Simplification of the current framework, it suggests, will not be sufficient to meet the demands of the future. Among the high level principles said to be necessary in any such reform, are the laudable aims of rebuilding trust between professionals, the public and the regulators and reducing the scope of regulation so it focuses on what works (evidence based regulation).

For our professional clients

Two important decisions on privacy are expected in 2016. The first, R (on the application of Catt) v Metropolitan Police Commissioner; R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9, [2015] 2 All ER 727, concerns the lawful retention of personal details by the police following arrest, when no conviction or further police action follows. The important arguments surrounding art 8 of the European Convention on Human Rights and proportionality aired in the Supreme Court, may see this case go to Strasbourg. We will watch this case with interest; the protection of privacy of those that come to the attention of the police is an important issue for our professional clients. The second judgment awaited with interest is a decision of the Court of Appeal in a case known as Mrs M, also expected in 2016 (see judgment of the High Court in ABC v St George's Healthcare NHS Foundation Trust [2015] EWHC 1394 (QB)). The court in this case will be asked to re-define the confidential relationship between doctors and patients and to rule on whether medical staff have a duty of care to inform family members that they may be at risk of inheriting a serious disease.

What would you like to see in 2016?

The BPC has set an example to other small and non-statutory regulators by revising its procedures to allow lawyers to engage in disciplinary hearings. Given the recent statement of intent issued by the 'big three' regulators for the talking professions (the British Association for Counselling & Psychotherapy (BACP), the United Kingdom Council for Psychotherapy (UKCP) and the BPC), which underlines their commitment to work more closely together, we hope that the BACP will follow suit and look anxiously at the outcome of the consultation on its current procedure and look to revise it to allow fairer hearings for members.

How might the expected developments in 2016 affect your business and clients?

The radical reform of health and social care regulation promised by the PSA could have a substantial impact on our regulatory clients. Lurking at the end of the list of high level principles in the PSA report, is a suggestion that the necessary drive for efficiency and reduced cost, may lead to mergers of regulators and deregulation for some. Predictions are usually unwise; but despite this omen, we do not consider that regulation in this sector is set to decline. The market for the provision of legal services may be changing, but the trend for increasing regulation of health and social care professionals is one that is not set to change dramatically in the next 12 months.

Interviewed by Kate Beaumont for LexisNexis.

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