Reform of the statutory underpinnings for professional regulators in the health sector has had its fair share of false dawns over the last decade. Perhaps the most significant of those being the establishment of the Office of the Health Professions Adjudicator which was then disbanded before becoming operational. On that background this week’s publication of the government’s response to the recent consultation on reforms may generate only limited expectations of real change.
No doubt the headlines will be grabbed by the Government’s commitments to remove the GMC’s power of appeal against its own fitness to practise decisions and the promised amendment of legislation to shelter professionals’ reflections from the reach of their regulator. Both topics which have received much commentary in the aftermath of the Bawa Garba case. However, the latter of those changes is only a partial solution to the problem as it will not prevent disclosure of such reflections being required in other contexts, such as at Inquests.
Amongst the other commitments are a commitment to reforming the boards of statutory regulators to include both executive and non-executive directors and the introduction of automatic erasure following conviction for certain serious criminal offences.
The Government does not intend to change the number of regulators or adjudicators at this time but does intend to achieve greater alignment in the powers and procedures available to regulators in their fitness to practise processes. This includes a commitment to allowing greater flexibility to the regulators to amend their own procedural rules without the need for parliamentary approval. The use of that power is one which is bound to be closely watched by representatives of the professions to ensure that fair procedures are not sacrificed on the altar of efficiency. It is promised that the proposed changes will increase the scope for cases to be disposed of without a full panel hearing. Regulators will be permitted to include mediation in their fitness to practise processes; an innovation which is presented as being part of a move to an inquisitorial approach, rather than an adversarial approach to fitness to practise.
An element of the reforms which is likely to be trumpeted as significant is that regulators will be encouraged to shift their emphasis to supporting the professionalism of all registrants. However, the basis on which this is to be achieved is vague and weak, involving “sharing best practice in relation to education, continuing professional development and professional standards.” The Government is not taking forward a proposal that the boards of the regulators would include employers’ representatives.
The proposals ignore a key strand in the recent discussions around systems related issue and human factors. Many of the regulators have already taken steps which acknowledge the significance of factors outside of the individual practitioner’s direct control in the context of fitness to practice cases. There is undoubtedly scope for the regulators of professionals to work proactively to promote working environments which facilitate and encourage professional practice, rather than threaten or impede it. The GMC’s annual survey of trainees illustrates how a professional regulator can shine a light on these issues and drive change by threatening to withdraw trainees.
Whether these proposals are ever implemented remains a matter of speculation. If they are implemented it will take some time to ascertain whether they yield significant efficiencies in terms of time or costs. In retrospect this may well be seen as a missed opportunity to overcome the problem of siloed regulation of individuals, employers and organisations. We can at least draw some comfort that many of the regulators are actively engaging with the realities of professional practice in the modern world and the need to take account of workplace cultures, environmental and systems factors.