Regulatory Reform Revisited – where there’s a will there’s a way

12 Jul 2019

In 2017 the UK and Devolved Governments consulted on proposals to reform the system of professional regulation across the UK in a document entitled “Promoting Professionalism; Reforming Regulation”.

Earlier this month, the Department of Health and Social Care published the Governments’ response to the consultation. It describes the legislation that governs the nine UK healthcare regulatory bodies as “Bureaucratic, inflexible and [that it] has led to complex and inefficient systems”.

The response advocates modernisation of fitness to practise processes, making them more collaborative, less adversarial, more efficient and less bureaucratic.

The response confirms that regulators should have autonomy to set more of their own operating procedures, leading to more responsive regulation, and that this must be accompanied by greater accountability. It recommends effective governance underpinned by openness and transparency in discharging of regulatory functions.

Secondary legislation is intended to be put in place with three stated aims:

  • Modern and efficient fitness to practise processes;
  • Better supported professionals; and
  • More responsive and accountable regulation.

Of particular note, is the acceptance that there should be legislative change as recommended by the Williams Review, firstly to remove the General Medical Council‘s (GMC) right to appeal decisions of the Medical Practitioners Tribunal Service, and secondly to modify the GMC and General Optical Council’s powers to require information from registrants for fitness to practise purposes to exclude reflective practice material.

Further consultation on draft legislation to achieve these changes is anticipated.

In order to achieve the three stated aims identified above, consistent powers are to be handed to regulatory bodies to enable fitness to practise cases to be dealt with in a more responsible and proportionate manner with the most significant change being the ability for regulators to resolve cases without the need for a full Panel hearing.

Rules drafted approved by the Department for Education for the newly set up Social Work England demonstrate how changes anticipated across the regulators may look. The rules allow Case Examiners to resolve cases on a consensual basis, with the registrant being afforded an opportunity to respond to the proposed sanction and also allow the automatic erasure from the Register, where an individual has been convicted of a “very serious” criminal offence in the UK.

The response sets out a list of offences to which this may apply. This includes; sexual assault, rape, assault by penetration, rape and offences against children under 13, child sex offences, abuse of children through prostitution and pornography, offences against persons with mental disorder impeding choice, murder, blackmail, offences under the Modern Slavery Act 2015 and offences under the Human Trafficking and Exploitation (Scotland) Act 2015 (all of the above to include parallel offences under Scottish and Northern Irish legislation).

Where consensual disposal is implemented, the Governments will give further thought to whether the Professional Standards Authority (PSA) should have a role in reviewing decisions.

Looking at better support for professionals, the Governments anticipate that changes to fitness to practise processes will release regulators’ resources to better support professionalism and to ensure that registrants have and maintain acknowledge skills and expertise to deliver safe and high quality care. This is to be welcomed, particularly given the outcome of recent reviews such as that undertaken by Professor Appleby for the GMC regarding support to registrants. Whilst the overarching objective of most of the health regulators is that of public protection and patient safety, their role in ensuring the fitness and professionalism of all on the Register should not be ignored and although revalidation has been in place for some time, in the GMC and Nursing and Midwifery Council, it will be interesting to see how the intended promotion and support of professionalism will be put into action.

The final recommendation is that of more responsible and accountable regulation. It is recognised that regulators should be able to make changes to operational procedures in a timely fashion. Amendments to legislation are anticipated which will allow the regulators to vary day to day operating practices, allowing a responsive approach to changes made in the health and care arena.

The Governments intend to introduce a new duty on regulators to consider wider workforce implications in developing policies and processes and intend to increase and enhance requirements for openness and transparency. Regulators do, of course, currently present annual reports to parliament and make these available on their respective websites and it remains to be seen whether there will be a standard framework for regulators to adopt when producing annual reports such that the work of each regulator can easily be compared.

Finally, the Governments recommend that councils of regulatory bodies morph into boards comprising executive and non-executive directors. Non-executive directors are to always form the majority of the board. This should see recommendations of the Fit and Proper Persons review, being adopted in the appointment process.

The numbers

The report identifies that generally, responses to the questions posed were mixed. Some of the questions resulted in there being no clear consensus on the proposal. One such example is the question relating to whether the PSA should take on the role of advising UK Governments on which groups of healthcare professionals should be regulated. 46% of respondees agreed whereas 43% disagreed. The Governments believe that the PSA is best placed to provide independent advice on this issue which will aid transparency required in regulating professionals.

The response regarding reducing numbers of regulators was also mixed. The Government’s response to this question having considered all of the replies received is that multi-professional regulation can work and that whilst there may be a case to be made for fewer regulators, more work is needed before such a proposal is pursued.

As stated above, the creation of a right to automatically remove registrants from a list where convicted of a very serious criminal offence, is to be introduced, which arises from question 8 on the original consultation. 72% of those who responded to this question indicated that the introduction of a consistent set of powers was appropriate. It is stated that secondary legislation will be prepared to introduce “broadly consistent” fitness to practise powers for all nine regulators.

The issue of there being a single adjudicator was one matter referred to within the consultation and is a suggestion that is not entirely new, seasoned practitioners will recall that proposals for the Office of the Health Professions Adjudicator were shelved in 2013 the Government’s response to this question is that regulatory bodies should work more closely, which might improve public protection and improve efficiency. Whilst the emerging concerns protocol signed in July last year, demonstrates that the regulators are working together, this remains an area where further exploration by the Department of Health and Social Care is required.

What happens next?

Regulators will work with the Governments in each part of the UK to implement the recommended changes. Secondary legislation will be drafted for wider consultation and Governments will further consider implementation of regulatory reform.

Key additional priority areas are to be considered where change is considered appropriate, including assessing the appropriate level of regulatory oversight, the number of regulatory bodies (suggestions previously made as to the amalgamation of certain of the regulators to reduce the number of regulators across the board), reform to the registration, standards and education functions of each of the regulatory bodies and the roles of professional regulators in regulating businesses and premises.

The Governments indicate that future proposals in each area will be the subject of further consultation.

Impact

The response is long awaited and is to be welcomed. The aims outlined within the response and the plans for the introduction of secondary legislation, should allow a regime to develop that is efficient, consistent and proportionate across the health and social care regulatory arena.

The first reform to be implemented is likely to be the withdrawal of the GMC’s right of appeal. A section 60 order will need to be applied for and given the strength of feeling that this reform is required, the DoHSC will consult on the amendment in the near future.

Changes recommended within the Government’s response will not occur overnight given the need for secondary legislation, further consultation and the fact that some of the issues considered in the original consultation, require further exploration, but we believe that the recommendations made and conclusions reached will go some considerable way to do what the consultation intended; in promoting professionalism and reforming regulation.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Clare Chapman

Clare Chapman

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Manchester


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