OUR SUMMARY OF THE KEY POINTS

On 2 April 2014, the Law Commission published its report (and draft Bill), outlining the work it had done reviewing the complex professional regulation legislation that currently exists. They made a total of 125 recommendations to the Government, which essentially set out a new single legal framework for the regulation of all health and social care professionals. We were told that ‘the reforms aim to sweep away the out-dated and inflexible decision-making processes associated with the current legislation. The new legal framework would introduce a clear and consistent legal framework which is needed to enable the regulators to uphold their duty to protect the public’.

Read our summary and comment on those recommendations HERE.

The Government has now responded to each of those 125 recommendations.   Here is a summary of the key points:

The Government has accepted the following;

  • That there should be a single statute which provides the framework for all the regulatory bodies and the Professional Standards Authority (PSA)
  • The Government accepted that there should be an overriding objective but changed the terminology, such that there should be an ‘overriding objective of public protection, the pursuit of which involves the pursuit of objectives in relation to protecting, promoting and maintain the health safety and well-being of the public, promoting and maintaining public confidence in the profession, and promoting and maintaining proper professional standards and conduct’
  • That in order to be registered an applicant must be appropriately qualified, be fit to practise and have indemnity or insurance arrangements
  • Introduction of language controls for HCPC, GOC and GCC, so that they can ensure exempt applicants (under the EU Qualifications Directive) are proficient in English
  • The Registrar has power to remove an entry or annotation where there are reasonable ground to believe that an entry has been fraudulently procured or incorrectly made 
  • That registrants convicted of certain serious criminal offences should automatically be removed from the Register – the Government will consider what should be included in the list of serious criminal offences
  • The closure of a case with or without advice, or the giving of a warning, should only be used where the realistic prospect test is not met. Undertakings should only be agreed where the realistic prospect test is met, the registrant admits impairment and the public interest is satisfied
  • Regulators should have the power to review certain decisions of their own initiative, if they are materially flawed.  However, the Government wish to consider  this further to ensure that it not too onerous and wish to include a public interest criterion that must be satisfied both when determining whether to undertake a review and during the process itself
  • That FTP panels should not admit evidence that would not be admissible in civil proceedings in the UK country where haring takes place, unless relevant and fair
  • The Civil standard of proof shall apply to all FTP hearings
  • Any two or more regulators can arrange for any of their functions to be exercised jointly, as long as it meets the ‘likelihood of improvement test’
  • PSA still have right to refer Fitness to Practise FTC decisions that it believes fail to protect public.  Such a power will be exercised alongside a regulator’s right to refer cases. It wishes to develop the approach so that the grounds of the PSA’s power to make a referral and any potential right of appeal for regulatory bodies more closely match the objective

Recommendations that were rejected;

  • That the Privy Council‘s formal role in relation to health and social care professionals should be removed entirely
  • That the Health Select Committee should be involved in the appointment of panel chairs; this would be lengthy and give rise to potential conflicts of interest
  • That all registrants should intend to practice the profession in order to be registered, or that there would be a separate register for those who are not practising (as this may create public confusion)
  • That mediation should have a statutory footing within the context of FTP. It believes that medication does not meet with the objective of RTF procedures
  • The range of sanctions to be open to regulators was not agreed: advice and warnings should only be available where there is no finding of impairment.  Warnings should not be available when a finding of impairment has been made, as it raises questions regarding the difference between such warnings and the warnings issued pre Investigating Committee.  As an alternative, it proposes to adopt a distinct sanction similar to the NMC and the HCPC, namely the ‘Caution Order’
  • The Government considered the Law Commission’s proposals about the appropriate tests for misconduct and impairment.  The Government agreed with the Law Commission that there is an established body of case law surrounding the existing terminology of ‘misconduct’ which appears to function well.  However, it was not persuaded to change this by introducing ‘disgraceful misconduct’.  It was felt that to change it would lead to argument about the scope of such provision and that retaining the current terminology avoids this risk.  Whilst there is agreement that concerns arising from single clinical incidents may need to be captured by impairment, the Government wish  to consider how best to provide for this in legislation

Further thought required:

  • In response to the suggestion that the regulators be given powers to make legal rules which are not subject to approval by Government of Parliament (overseen instead by the PSA) the Government was not yet ready to accede to this.  The Government intends to undertake further work to determine the scope of rule-making powers and where these should lie, to fully assess the level of risk associated with delegating these powers 
  • It did not consider that the recommendation that the regulators’ power to keep voluntary registers should be removed; it has indicated that it will review the powers of the regulatory bodies to hold these registers once there is greater experience in their use (bearing in mind they were only brought in in 2013)
  • Whilst there is agreement that public registers should show current sanctions, consideration needs to be given to the appropriate max length of time for previous sanctions
  • The term ‘voluntary removal’ is to be reconsidered; the terminology should reflect the fact that the action is linked to regulatory action
  • The balance between overriding objective/duty to assist the regulator and right not to incriminate self needs to  be considered

Comment

The Government has accepted the large majority of the recommendations made by the Law Commission either in full, or in part.  It has, however, not made a decision on the rule making powers by the regulators, perhaps understandably slow to rubber stamp such an important change which would restrict its own involvement in this area.   The Government in its introduction points out its awareness that regulatory bodies are displeased that the legislative process has not moved quicker, and has stated that it is ‘committed to legislating on this important matter when parliamentary time allows’. In the interim, it states, it is ‘taking forward secondary legislation to improve the regulatory bodies’ processes in order to enhance patient protection and improve public confidence’ (they then go on to list these - see below). There is no timescale given; it seems that we must continue to wait with baited breath as to the precise terms of the new framework.

Secondary Legislation

  • The General Medical Council (Fitness to Practise etc.) and the Professional Standards Authority for Health
  • and Social Care (Referrals to Court) Order 2014;
  • The Nursing and Midwifery (Amendment) Order in Council 2014;
  • The Health Care and Associated Professions (Knowledge of English) Order 2015;
  • The General Dental Council (Fitness to Practise etc.) Order 2015;
  • The Health and Care Professions (Public Health Specialists and Miscellaneous Amendments) Order 2015;
  • The Pharmacy (Preparation and Dispensing Errors) Order 2015;
  • The Pharmacy (Premises Standards, Information Obligations, etc.) Order 2015;
  • The Pharmacy (Responsible Pharmacists, Superintendent Pharmacists etc.) Order 2015.