Regulation of Health and Social Care Professionals Consultation

which practitioners have undertaken additional training to be able to undertake
protected functions. 90
5.119 In addition to protected functions some of the regulators also refer to the concept
of scope of practice. This refers to the areas of practice that professionals have
the knowledge, skills and experience to practise lawfully. This is linked to the
issuing of standards of proficiency and is discussed in Part 6.
Misuse of protected titles and functions
5.120 As noted above, the legislation establishes criminal offences relating to protected
titles and functions. Although the regulators are not given express statutory
prosecution powers, some have adopted a policy of bringing prosecutions in
some cases as part of their public protection duty. This role has developed in the
main because of concerns amongst the regulators that the view of the police is
that prosecutions under a regulator’s own statutory provisions are a matter for
that regulator. In most cases the decision whether or not to prosecute is
delegated to the Registrar or the Investigation Committee.
5.121 The General Optical Council, for example, has a protocol setting out the
procedure to be followed in investigating criminal offences and determining in
each case whether criminal proceedings should be brought. 91 However, the
Council only has powers to bring prosecutions in England and Wales, and not in
Scotland (where all prosecutions proceed in the name of the Lord Advocate or
the Procurator Fiscal). Other options available include a referral to their internal
fitness to practise procedures, another regulator, the NHS Counter Fraud
Agency, trading standards agencies, the police and the Public Prosecution
Service for Northern Ireland and the Crown Office and Procurator Fiscal Service
in Scotland.
5.122 In addition to offences created by the governing legislation, regulators may
consider other offences that are relevant to its remit, for example someone who
has gained registration by providing false information or someone has breached
a court order requiring the production of a document requested by the regulator in
the course of an enquiry.
5.123 Some of the regulators do not bring prosecutions and focus instead on tackling
title misuse by alternative means, such as improving the awareness of employers
and registrants about the importance of checking registration. This policy has
been adopted largely because of the practical difficulties associated with bringing
prosecutions including the perceived high threshold for pursuing prosecutions,
the insufficient deterrent effect of fines, and the fact that any fine imposed is not
received by the regulator and any costs order is highly unlikely to cover the costs
of preparing the case. 92
90 For example, Prescription Only Medicines (Human Use) Order 1997, SI 1997 No 1830.
Issued under the Medicines Act 1968.
91 Council for Healthcare Regulatory Excellence, Protecting the Public from Unregistered
Practitioners: Tackling Misuse of Protected Title (2010) para 4.17.
92 As above, pp 5 to 10.
96