Regulation of Health and Social Care Professionals Consultation

Provisional view
5.124 The current system of protected titles and functions is an important aspect of the
existing regulatory system. Our provisional view is that to ensure sufficient legal
certainty and clarity all the existing protected titles and functions that are set out
in the governing legislation should be specified in the statute.
5.125 As noted above, some of the regulators and in some cases the Privy Council
have powers to establish additional protected titles. We propose that these
powers should be removed in the new legal framework. Instead, our view is that
the Government should be given a power to issue regulations which would add to
or remove any of the existing protected titles and functions. This is because such
decisions will require a political policy decision to be made about which titles and
functions should be protected through the introduction of criminal offences, and
the allocation of public resources (such as court time and police support) to
support this policy decision (see provisional proposal 2-10).
5.126 However, our review does present an opportunity to look again at the titles that
are protected, or to prevent the use of particular title by specific groups. For
example, concerns have been raised about the use of the term doctor in
circumstances where it implies that the person is a medical practitioner. 93 Other
examples might include allowing doctors and dentists to describe themselves as
surgeons but not osteopaths and podiatrists. There may also be a need to look
again at the existing protected functions. For example, it has been argued that
the skills required to carry out refraction are within the competencies of
dispensing opticians and should not be restricted to physicians and
optometrists. 94
5.127 We propose that the regulators should continue to have the ability to bring
prosecutions. It would be left to the regulators to decide whether or not to do so.
The regulators would be required to set out in a publicly available document their
policy on bringing prosecutions, including any procedures and criteria that will
apply. However, this would not apply in Scotland where all prosecutions proceed
in the name of the Lord Advocate or, in the sheriff court, in the name of the
Procurator Fiscal.
5.128 Finally, the Law Commission has recently completed a project to establish a
principled basis for the creation of criminal offences in a regulatory context. The
main recommendations made by the Commission include that, for example,
criminal law should only be employed to deal with wrongdoers who deserve the
stigma associated with criminal conduct (and not as the primary means of
promoting regulatory objectives) and that separate offences should be removed
when a general criminal offence would suffice (for example those in the fraud Act
2006). 95 The regulatory aspects of this project have been implemented in part by
93
W Jerjes, “Use of Medical Titles By Non-Doctors Can Mislead Patients” (2011) British
Medical Journal 343, d4241.
94 Association of British Dispensing Opticians, Refraction by Dispensing Opticians (2010).
95
Criminal Liability in a Criminal Context (2010) Law Commission Consultation Paper No
195.
97