Regulation of Health and Social Care Professionals Consultation

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5.90 In some cases, the right to appeal is to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland. But elsewhere the appeal is to the county court or in Scotland to a sheriff. 68 Provisional view 5.91 Other than requiring the regulators to publish a register, we believe that the regulators should be given discretion to determine matters relating to the upkeep and publication of the register. We therefore propose that the Councils should be given broad rule-making powers on these matters. 5.92 In our view, it is important for the new statute to ensure that all the regulators have powers to deal with fraudulently procured or incorrectly made entries. We have considered whether the statute should impose a consistent process for dealing with these matters across the regulators, for example by requiring that the decision to remove such entries can be made only by a Fitness to Practise Panel or the Registrar. However, this would have resource implications for some regulators and is not in keeping with our general approach to law reform which would give the regulators greater autonomy to exercise their statutory functions (see provisional proposal 2-2). Instead, we think the statute should provide a broad duty within which the regulators can establish their own process. 5.93 We propose that each regulator should be required to establish a process for dealing with fraudulently procured or incorrectly made entries. Councils would be given discretion in deciding the precise process they wish to introduce, subject to other considerations such as the outcome of consultation (see Part 2). This could involve the establishment of a bespoke panel or committee, or giving the decision to the Registrar or a Fitness to Practise Panel. 5.94 We propose that the right of appeal should in all cases be to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland. However, as noted above, we also welcome views on whether such appeals should be considered under the tribunal structure created by the Tribunals, Courts and Enforcement Act 2007. This is discussed in Part 9 (see question 9-3). Provisional Proposal 5-18: The regulators should have broad powers to establish rules concerning the upkeep and publication of the register. Provisional Proposal 5-19: The statute should require each regulator to establish process for dealing with fraudulently procured or incorrectly made entries. The regulators would have broad powers to decide the precise process it wishes to introduce. Provisional Proposal 5-20: The statute should provide a right to appeal against registration decisions relating to fraudulently procured or incorrectly made entries, to the High Court in England and Wales, the Court of Session in Scotland, and the High Court in Northern Ireland. 68 Health Professions Order 2001, SI 2002 No 254, art 38(1)(b) and Nursing and Midwifery Order 2001, SI 2002 No 253, art 38(1)(b). 88
RESTORATION TO THE REGISTER 5.95 A person who has been removed from the register can apply to be restored. In most cases where a registrant’s entry has been erased following fitness to practise proceedings, applications for restoration must be referred to a Fitness to Practise Panel or similar committee. 69 5.96 In such cases, the legislation sets out a prescribed time limit before which applications for restoration cannot be made. The various time limits are set out in table 5 below. Time limit for application for restoration 89 Time limit for subsequent applications GCC 10 months Not specified GDC 5 years After 12 months GMC 5 years After 12 months GOC 2 years After 2 years GOsC 10 months Not specified GPhC 12 months Not specified GSCC Not specified Not specified HPC 5 Years 12 months NMC 5 years 12 months PSNI Not specified Not specified Table 5:Time limits for applications for restoration and subsequent applications 5.97 Most of the regulators have detailed rules for how restoration hearings should be conducted. These include rules governing the further investigation of cases, notification of hearings, order of proceedings, the giving of reasons for decisions, publication of decisions, powers of joinder and powers to refer to other committees. In most cases, the restoration decision can be appealed to the High Court in England and Wales, in Scotland the Court of Session and the High Court in Northern Ireland. 70 5.98 A different procedure applies to applications for restoration in cases not related to fitness to practise proceedings, such as where the person has been removed from the register because they have been working abroad, taken a career break, 69 For example, Medical Act 1983, s 41(3) and General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 No 2608, r 23(1). At the General Optical Council such hearings are undertaken by the Registration Appeals Committee, but in practical terms this is the same as a fitness to practise committee; Opticians Act 1989, s 13K. 70 For example, Opticians Act 1989, s 23G.
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Law Commission Scottish Law Commiss
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CODE OF PRACTICE ON CONSULTATION Th
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The default powers of the Privy Cou
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Review hearings 187 Should regulato
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FOREWORD BY THE CHAIRMEN OF THE LAW
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TABLE OF ABBREVIATIONS CHRE Council
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approval imposes burdens on the Dep
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1.14 Second, recent times have witn
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constrain the costs of the current
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1.26 The regulation of social care
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1.34 We will be undertaking a wide
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on several occasions. 4 2.3 There a
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workers), some are largely self-emp
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(2) to guarantee minimum procedural
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(8) the instrument is scrutinised b
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subject to scrutiny by the Joint Co
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PUBLIC CONSULTATION 2.37 Consultati
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(1) that which is binding (such as
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2.54 The role of the Privy Council
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Parliament”. 34 It is likely that
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(1) a report on the exercise of its
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earlier in this Part, Orders in Cou
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2.87 But the retention of section 6
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safety and well-being of the public
Page 50 and 51: Provisional Proposal 2-18: The Gove
Page 52 and 53: 2.119 But we also consider it impor
Page 54 and 55: PART 3 MAIN DUTY AND GENERAL FUNCTI
Page 56 and 57: asset”. 10 The courts have also r
Page 58 and 59: practise is impaired. Thus, in maki
Page 60 and 61: interests of its members. Under our
Page 62 and 63: 3.36 In our view, the need for gene
Page 64 and 65: PART 4 GOVERNANCE 4.1 All of the re
Page 66 and 67: egulators would be placed directly
Page 68 and 69: powers to investigate and intervene
Page 70 and 71: 4.30 A regulator not included in ta
Page 72 and 73: Education and training 4.39 Most co
Page 74 and 75: must be lay or that there should be
Page 76 and 77: 4.57 The General Medical Council ha
Page 78 and 79: 4.66 Moreover, it is not evident th
Page 80 and 81: PART 5 REGISTERS 5.1 A key statutor
Page 82 and 83: 5.9 However, the significance of re
Page 84 and 85: 5.18 In effect, statutory powers wo
Page 86 and 87: 5.25 Finally, a small number of the
Page 88 and 89: Voluntary registers 5.33 Our provis
Page 90 and 91: Council may register a person (or g
Page 92 and 93: through negligence on the part of a
Page 94 and 95: 5.61 We propose that the statute sh
Page 96 and 97: communicated, which have no formal
Page 98 and 99: the statute should impose the same
Page 102 and 103: not complied with continuing profes
Page 104 and 105: could be made to provide better inf
Page 106 and 107: and provide links to information ab
Page 108 and 109: which practitioners have undertaken
Page 110 and 111: the Government in its guidance to d
Page 112 and 113: eing met by the local education pro
Page 114 and 115: 6.13 Second, our legal framework wo
Page 116 and 117: Medical Council must satisfy the re
Page 118 and 119: 6.31 The Health Professions Council
Page 120 and 121: (1) which qualifications are approv
Page 122 and 123: 6.48 Finally, there are a number of
Page 124 and 125: Good Medical Practice which covers
Page 126 and 127: and other optical appliances, such
Page 128 and 129: 6.72 We also believe that the new l
Page 130 and 131: looked at in detail only when conce
Page 132 and 133: professionals to remain registered
Page 134 and 135: Misconduct 7.6 Most of the governin
Page 136 and 137: (1) an order under section 246(2) o
Page 138 and 139: THE FITNESS TO PRACTISE FINDINGS 7.
Page 140 and 141: Option 2: consolidation of the exis
Page 142 and 143: (a) has in the past acted and/or is
Page 144 and 145: that many of the regulators have de
Page 146 and 147: PART 8 FITNESS TO PRACTISE: INVESTI
Page 148 and 149: language is not English. 7 However,
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of working around their legislative
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8.22 Some of the regulators, such a
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undertake this task, for example, i
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Assessments 8.37 Most regulators ha
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(1) an Investigation Committee whic
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THRESHOLD TEST 8.52 Having undertak
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egulators accept undertakings given
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hearings or other safeguards, espec
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epeated. Second, following an inves
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Provisional view 8.84 The current p
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PART 9 FITNESS TO PRACTISE: ADJUDIC
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of the individual circumstances of
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practise process to be considered i
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to set up and the new arrangements
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oversee their Panel appointment pro
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the regulators to ensure that Panel
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9.50 For most regulators the fitnes
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enable the regulators to deliver ma
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(3) a private hearing is necessary
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Question 9-16: Should the statute p
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and final sanction”. 63 We theref
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Question 9-22: Should the statute g
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found to be unfit to practise. 73 W
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accountable, consistent, transparen
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above. The Council for Healthcare R
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Provisional Proposal 9-32: The stat
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that the sanction is clearly inappr
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away from self-regulation in health
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may appoint employees and has a wid
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Provisional Proposal 10-3: Appointm
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general functions should be retaine
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the imposition of a relevant sancti
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independence of the new Medical Pra
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11.5 However, it may be that the co
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Act 1972. For example, the Medicine
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is fit to carry on such a business
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extend to all businesses or to all
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Council and Care Quality Commission
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in the 2011 White Paper Enabling Ex
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12.13 The Council for Healthcare Re
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12.23 We welcome views on the examp
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places a general duty to cooperate
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equired to give due consideration t
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professions are not subject to the
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attach to systemic failures to impl
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Order 1976. The definition of the U
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oute to UK registration. 30 The Gen
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13.39 The potential advantages of t
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(6) professional bodies that repres
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Provisional Proposal 4-2: The statu
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(5) the appointment of visitors and
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Provisional Proposal 8-13: The powe
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Provisional Proposal 10-3: Appointm
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PART 13: CROSS BORDER ISSUES Provis
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GENERAL SOCIAL CARE COUNCIL It shal
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(8) Standards Committee GENERAL OST
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(22) Licentiate in medicine and sur
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(68) Speech therapist NURSING AND M
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