Acting to stop harm: the FCA and Appointed Representatives
The Law Commission are not due to publish the results of their recent consultation (1) on the restructuring and reform of the major health and social care regulators until early 2014, but if the early indications are anything to go by, the one thing we can be sure about is that we cannot be sure about anything.
So heterogeneous are the regulators and the regulated community in this field, that it is perhaps unsurprising that the Commission’s proposals have so starkly divided opinion. Proposals that range from the removal of the formal role of the Privy Council whilst simultaneously increasing the powers of the Secretary of State, to establishing a new harmonised test of impairment and encouraging greater cooperation and collaboration between regulators in all areas of their work, appear to be deeply divisive.
Of the 179 respondees, a measure of accordance appears to exist in respect of a handful of relatively uncontentious proposals. Unsurprisingly perhaps, there appears to be a broad consensus (2) that the time has now come for an overhaul and modernisation of the operation of these regulatory authorities. There also seems to be a convergence of views as to the best way to achieve greater consistency across the multitude of regulatory regimes, namely through a consolidated statutory regime; “universal acclaim” (3) is also said to exist for the proposal that regulators should, generally speaking, be doing a lot more to work together.
That is however, where any consensus is likely to end; views on the controversial role of the government in the operation and oversight of health and social care regulators are as divergent as they could possibly be, and there appears to be no united front in respect of the conjoined and fundamental questions of whether the fitness to practise rules should be the same across all regulators and what the precise terms of the ‘paramount duty’ of regulators should be. The divergence of opinion on the latter issue falling along predictable lines; with some regulators asserting the importance of being able to cite as relevant matters occurring in the private life of a registrant (where it calls into question their ‘fitness to practise’), against the views of those who consider that the private life of a registrant is just that. In our experience, this is just the sort of issue upon which at present, there is no parity of approach between regulators; a ‘regulatory lottery’ creating uncertainty and confusion for registrants.
Where does all this leave the future of health and social care regulation? Whilst the full picture will not be known until the complete analysis of responses has been undertaken, the uncomfortable truth is that the new Bill cannot begin to please everybody; someone is going to be disappointed.
1. Regulation of Health Care Professionals; Regulation of Social Care Professionals in England, Joint Consultation Paper LCCP 202 / SLCDP 153 / NILC 12 (2012).
2. Apart from one respondent organisation.
3. According to Tim Spencer-Lane, 10 July 2012, speaking at a Lexis Nexis conference, 1 Whitehall Place, London.
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