Regulation of Health and Social Care Professionals Consultation

6.72 We also believe that the new legal framework should ensure greater clarity over
the legal status of the regulators’ guidance. We propose that the statute should
provide for two separate types of guidance:
(1) tier one guidance which has a higher legal status and must be complied
with by registrants with unless there are good reasons for not doing so;
and
(2) tier two guidance which is weaker in status than tier one guidance but it
still must be taken into account by registrants and given due weight.
6.73 When issuing guidance, the regulators would be required to state whether the
document is tier one guidance or tier two guidance. This statement would appear
in the document itself. This approach to the issuing of guidance is used in other
areas of health and social care law, and will therefore be familiar to most
professionals. 56 In deciding whether a particular document should be tier one
guidance or tier two guidance, the regulators will need to consider the nature of
the guidance contained therein. Thus, tier two guidance can include generalised
statements of good practice, while tier one guidance will need to be clear and
precise. Our intention is to ensure that at least in level one guidance, the
language used is instructive and not overly vague and rhetorical.
6.74 Under this proposal, it would be possible for the regulators to publish guidance
which is a mixture of tier one and tier two guidance. But it would be important for
such guidance to distinguish between those statements that have a higher legal
status and those that do not (for example, by setting out in bold the relevant level
one guidance in the text and by clearly distinguishing between statements in the
guidance which use “you should” and “you must”).
6.75 Finally, we welcome further views on how the legal framework should deal with
the regulators’ responsibilities in relation to professional ethics. Currently some of
the governing legislation gives the regulator in question a power to advise
members of the profession on ethics, and separates this clearly from standards of
conduct and performance. 57 However, some of the other legislation either does
not mention ethics at all, or treats ethical guidelines as a subset of codes of
conduct or standards of proficiency. There may be a case for establishing a clear
separation between the regulators’ ethical guidelines and standards of conduct
and performance. Arguably, the latter amounts to technical guidance for
professional practice and will in the majority of cases vary in content between the
different professions, while ethical guidance (such as not having sexual relations
with a patient) is more likely to be applicable to all the professions. On the other
side, the distinction between standards and ethics may not be as sharp as this
analysis suggests and it may not be possible for the law to treat them differently.
Question 6-8: Is too much guidance being issued by the regulators and how
useful is the guidance in practice?
Provisional Proposal 6-9: The statute should require the regulators to issue
guidance for professional conduct and practice.
56 Mental Health Act 1983, s 118 and Mental Capacity Act 2005, s 42.
57 For example, Medical Act 1983, s 35.
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