This consultation paper makes provisional proposals which seek to simplify and modernise the law and establish a streamlined, transparent and responsive system of regulation of health care professionals, and in England only, the regulation of social workers. The paper makes proposals and asks questions on the following areas:
- The registration and renewal of registration of professionals, student registers, registration appeals, protected titles and protected functions.
- How the regulators oversee the quality of pre-registration and post-registration education and training.
- How the regulators set standards for professional conduct and practice, and ensure ongoing practice standards (for example, through revalidation).
- The investigation and adjudication of fitness to practise case.
- The role of the Council for Healthcare Regulatory Excellence
- The regulation of business premises and activities
- The governance arrangements of the regulators, including the size and composition of Councils
- The systems through which the regulators can be held to account, including the roles of the Privy Council, Government and Parliament, and duties to consult the public.
This is a tripartite project between the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission.
This consultation relates to the Law Commission's Regulation of Health and Social Care Professionals project.
REGULATION OF HEALTH CARE PROFESSIONALS
REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND
SUMMARY OF CONSULTATION PAPER
Introduction:
1. This is a summary of the joint consultation paper by the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission on the regulation of health care professionals in the UK and of social care professionals in England. This summary provides a brief overview of the main proposals and questions made in the consultation paper. More information and detail is available at http://www.lawcom.gov.uk/.
2. We emphasise that the provisional proposals put forward represent our preliminary view about how the law should be reformed. We welcome comments and feedback on the proposals and questions put forward. We will be reviewing every proposal on the basis of the responses made to the consultation paper.
3. The remit of our review extends to the legal frameworks for the following bodies:
- Council for Healthcare Regulatory Excellence
- General Chiropractic Council
- General Dental Council
- General Medical Council
- General Optical Council
- General Osteopathic Council
- General Pharmaceutical Council
- General Social Care Council
- Health Professions Council
- Nursing and Midwifery Council
- Pharmaceutical Society of Northern Ireland
4. These bodies operate within a wide variety of legal frameworks which have been agreed and amended by Parliament in different ways and at different times over the past 150 years. A complex legislative landscape has evolved on a piecemeal basis resulting in a wide range of idiosyncrasies and inconsistency in the powers, duties and responsibilities of each of the regulators.
Structure of reform (Part 2 of the consultation paper)
5. Our proposed structure would consist of a single Act of Parliament to provide the legal framework for all the health and social care regulators listed. This would replace all the existing governing statutes and orders.
6. The statute would impose consistency across the regulators where this is necessary in the public interest. Otherwise the regulators would be given greater autonomy to adopt their own approach to regulation in the light of their circumstances and resources. This would include broad powers to make or amend rules concerning the exercise of their functions and governance without any direct oversight (including Privy Council approval and Government scrutiny). There would be a statutory duty on the regulators to consult whenever issuing or varying anything which is binding, anything which sets a benchmark or standard, and a competency.
7. Under our proposals, the formal role of the Privy Council in relation to health care regulation would be removed entirely. Instead, the Government would be given regulation-making powers on certain issues on matters that require a political policy decision to be made, including where there is sufficient public interest and matters that give rise to questions about the allocation of public resources. This would replace the order-making power in section 60 of the Health Act 1999 which would be repealed.
8. The Government would also be given default powers to intervene where a regulator has failed or is likely to fail to perform any of its functions. We also believe that the House of Commons Health Committee and the devolved assemblies should consider holding annual accountability hearings with the regulators.
9. There would be a duty on each regulator to provide information to the public and registrants about its work. Each regulator will be required to lay copies of their annual reports, statistical reports, strategic plans and accounts before Parliament and also, in all cases, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.
10. The Government would be given a regulation-making power to abolish or merge any of the existing regulators, or to establish a new regulatory body. This power would also enable the Government to add new professional groups to, or remove professional groups from, statutory regulation.
Devolved responsibilities
11. Our proposals would not affect the Scotland Act 1998, and accordingly the Scottish Parliament would continue to have legislative competence over certain professional groups regulated since devolution. If the Scotland Bill 2010 does not become law, any use of the proposed regulation-making power (see above) in respect of a profession for which the Scottish Parliament has legislative competence, must be consulted on by Scottish Ministers and laid before the Scottish Parliament as well as the UK Parliament.
12. We seek further views on whether the Pharmacy (Northern Ireland) Order 1976 should be retained as a separate standalone piece of legislation alongside the new legal framework or retained in the new statute as a separate Part. We also welcome views on whether the Government’s proposed regulation-making powers should include a specific provision to allow for the incorporation of the Society in the main legal framework of the new statute at some point in the future (subject to the approval of the Northern Ireland Assembly) or to apply specific reforms to the Society.
Comments on Regulation of Health and Social Care Professionals
JOINT CONSULTATION BY
Law Commission, Scottish Law Commission & Northern Ireland Law Commission
The Royal College of Physicians of Edinburgh is pleased to respond to this joint consultation on the Regulation of Health and Social Care Professionals. The College has the following comments on particular issues raised by the consultation:
Provisional Proposal 2-2: Consistency between regulators and legal framework
The College accepts that a degree of consistency between regulators is needed but also feels that regulators must have autonomy to adopt their own approach in the light of their circumstances and resources: for example a “one size fits all” approach is not appropriate when establishing the size and composition of the governing council of a regulator.
Provisional Proposal 2-7 Requirements for regulators to consult
The regulators already consult widely, and as such this requirement is likely to simply be a formality.
Provisional Proposal 2-8: The formal role of the Privy Council in relation to health and social care professional regulation should be removed entirely.
The College feels that the formal role of the Privy Council is not essential to providing objective assessment of changes to regulators and this duty could be performed by another body.
Provisional Proposal 2-14: The order making power in section 60 of the Health Act 1999 should be repealed and instead the Government should be given regulation-making powers on certain issues.
The College agrees with this proposal and feels this would be a less cumbersome process.
Provisional Proposal 2-17 Government powers to direct regulators
The College feels that where regulators have failed, Government should be able to intervene. However, this should not be a routine undertaking.
Regulators should be responsible to Parliament rather than to Government: the GMC is currently obliged to lay an annual report before Parliament via the Privy Council and this accountability to Parliament should continue.
Provisional Proposal 2-18: The Government should be given powers to take over a regulator which is failing to carry out its functions.
Assessment and decision making responsibilities should fall to Parliament, who should steer the course of action taken by Government. In clearly defined extreme circumstances, emergency powers delegated to Government to intervene directly would be appropriate.
Question 3-1: Should the statute specify the paramount duty of the regulators and the CHRE is to: (1) protect, promote and maintain the health, safety and wellbeing of the public by ensuring proper standards for safe and effective practice; or (2) protect, promote and maintain the health, safety and well-being of the public and maintain confidence in the profession, by ensuring proper standards for safe and effective practice?
The College agrees with (2).
Question 4-1 Governance structure of regulators
There is a need for consistency and best practice to be followed in this area, but enforced uniformity does not always lead to good results.
Recent Department of Health proposals that the governing council of the GMC should be reduced to eight members would not allow a range of interests to be represented and would not be able to adequately encompass members from different backgrounds that would help to ensure that the outlook of the governing council would not become overly narrow.
For example, the skills, experience and competences of council members must reflect an understanding of all jurisdictions in the UK.
It is vital that the regulator commands the confidence of the profession and the public, and the College feels the limitations being proposed by the Department of Health for the governance structure of the GMC would be too great to overcome in this respect.
Question 4-5 Appointment of regulator Council members
It is essential that members of the governing council of each regulator be appointed through a transparent public appointments system or equivalent.
Provisional Proposal 5-1: The statute should set out a core duty on all the regulators to establish and maintain a professional register.
The College feels this is essential in order for the regulators to perform their core functions.
Provisional Proposal 5-4: Student registers
There is some anxiety over the introduction of a student register, as poor conduct while a student can be an early indicator of something more serious, or it could be immature student behaviour: either could result in permanent harm to a medical career.
However, it is important that medical students have a professional ethic from the start of their studies and a student register should be introduced by the GMC and guidelines produced on the criteria for admission or removal from this register.
Question 5-8: Non-practising registers
Non-practising registers allow a doctor to maintain status as a regulated professional and give confidence to those dealing with them. As such, they serve a purpose for a minority of professionals and the options should be retained. It is important that those registered in this way do not imply to others that they continue to have practising privileges conferred only by a licence to practice.
Question 5-23: Should the statute set a consistent time period before which applications for restoration cannot be made (in cases where a registrant’s entry has been erased following fitness to practise proceedings), or should this matter be left to the regulators to determine?
We suggest that it should be left to the regulators to determine.
Question 5.26 Qualification information on registers
Revalidation will support the enactment of this aspiration and will bring the benefit of retaining a public record of qualifications and accreditation. The effort to achieve this in the short term should not be under-estimated.
Question 6-1: Should our proposals go further in encouraging a more streamlined and coordinated approach to regulation in the areas of education, conduct and practice? If so, how could this be achieved?
There is one sole regulator for all levels of medical education and training, conduct and practice, which is under the governance of the General Medical Council. We do not believe that more is needed as this appropriately streamlines the approach across the four nations.
Provisional Proposal 6-2: The statute should require the regulators to make rules on:
(1) which qualifications are approved qualifications for the purposes of preregistration and post-registration qualifications;
(2) the approval of education institutions, courses, programmes and/or environments leading to an award of approved qualifications and the withdrawal of approval;
(3) rights of appeals to an individual or a panel against the decision of the regulator to refuse or withdraw approval from an institution, course or programme;
(4) the quality assurance, monitoring and review of institutions, courses, programmes and/or environments; and
(5) the appointment of visitors and establishment of a system of inspection of all relevant education institutions.
The regulator must maintain a robust system of standard setting and quality assurance of all providers of post graduate education. Specialist royal colleges, as independent experts, are in an ideal position to set curricula, recommend standards and contribute to quality assurance but may require resourcing to support the regulator in this way.
We have left comment on undergraduate qualifications to medical schools. Assessing the equivalence of postgraduate qualifications is challenging and RCPE, along with its sister Colleges of physicians, has determined to recognise only those examinations that adopt completely College supported assessment eg MHKCP and MMed Singapore which are qualifications offered on successful completion of MRCP(UK). The regulator will have to determine whether the effort required to maintain an up-to-date equivalence database is cost effective.
Provisional Proposal 6-3: The statute should require the regulators to establish and maintain a published list of approved institutions and/or courses and programmes, and publish information on any decisions regarding approvals.
Approval information should be in the public domain.
Provisional Proposal 6-4: The statute should require education institutions to pass on to the regulator in question information about student fitness to practise sanctions.
Medical directors and undergraduate deans have a professional responsibility to advise the regulator of fitness to practice sanctions at local level. It may be helpful to add an organisational responsibility.
Question 6-5: Should the powers of the regulators extend to matters such as a national assessment of students?
Consistency of standards on graduation from medical school has been a long standing issue and should be tackled by the regulator.
Question 6-6: Should the regulators be given powers over the selection of those entering education?
This is an issue for medical schools in terms of the effectiveness of their processes for selecting those students who will benefit fully from a medical education.
Question 6-8: Is too much guidance being issued by the regulators and how useful is the guidance in practice?
Guidance should be consistent, succinct and cross referenced and available on-line for easy access, including the ability to access via mobile devices.
Provisional Proposal 6-9: The statute should require the regulators to issue guidance for professional conduct and practice.
Agreed.
Provisional Proposal 6-10: The statute should provide for two separate types of guidance: tier one guidance which must be complied with unless there are good reasons for not doing so, and tier two guidance which must be taken into account and given due weight. The regulators would be required to state in the document whether it is tier one guidance or tier two guidance.
Calling both “guidance” is misleading and potentially confusing as requirements are rules and guidance is advisory.
Provisional Proposal 6-12: The statute will require the regulators to ensure on-going standards of conduct and practice through continuing professional development (including the ability to make rules on revalidation).
Yes, we support this but the regulator will need to work closely with the medical Royal Colleges as the standards setters who have produced extensive specialty guidance which sets out requirements for content and amount of CPD to make it relevant in each specialty.
Question 10-1: How effective is the CHRE in performing the role of scrutinising and overseeing the work of the regulators?
In the absence of Privy Council scrutiny, it is vital that there is external scrutiny from another source and therefore CHRE has a role. An annual report to Parliament is also important in this regard.
Provisional Proposal 13-3: The statute should include broad powers for the regulators to register those from non-EEA countries, including powers to set requirements as to the language, practice and education requirements
The College agrees with this proposal. Regulators should be able to set fair requirements in this area that ensure patient safety. In addition, they should also be able to set requirements for EEA countries in terms of the same points, notably language.
Question 13-7: Quality assure UK qualifications which are awarded by institutions based overseas
Agreed - all UK university degrees should be quality assured by the regulator.
Question 13-8: Enabling the regulators to manage the issues that arise from distance service provision
Where a doctor is located outside the UK but influences the care of UK patients then it is important that provision is made for this in the Bill. All healthcare provided by doctors to patients in the UK should be regulated by the GMC or through reciprocal arrangements with the GMC.