Regulation of Health and Social Care Professionals Consultation

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undertake this task, for example, if they wanted to introduce a system of lay and registrant screeners similar to that established by the Health Professions Council. 8.30 Our provisional view is that the regulators should have powers to specify referral criteria for an investigation. This would help to ensure that, where appropriate such decisions are made against clear criteria, can be audited, and that cases are not closed inappropriately. However, it would be left to each regulator to decide the precise criteria it wanted to adopt. It is important to allow each regulator to determine its own approach to an investigation in the light of its resources and circumstances. Some regulators may wish to provide that all allegations must be referred to an Investigation Committee or case examiners, whilst others may want to specify exceptions. This may include, for example, requiring that convictions resulting in a custodial sentence must be referred directly to a Fitness to Practise Panel. Alternatively, regulators could introduce more elaborate threshold criteria similar to that developed by the General Pharmaceutical Council. 8.31 We appreciate concerns that the above proposal could produce an inconsistent approach to referral criteria across the regulators. Our provisional view is that such consistency is less important on this issue than giving each regulator sufficient flexibility to decide how to manage allegations in the light of their individual circumstances. There may also be concerns that the proposal gives too much power to the regulators to issue any criteria it sees fit, including overly complex criteria or criteria that allows registrants to avoid further investigation inappropriately. The checks and balances on issuing such rules are discussed in detail in Part 2. However, we welcome further views. Provisional Proposal 8-5: All the regulators should have the power to establish a formal process for the initial consideration of allegations (such as screeners). Provisional Proposal 8-6: The regulators should have the power to prohibit certain people from undertaking the initial consideration of allegations and specify that only certain people can undertake this task. Provisional Proposal 8-7: The regulators should have powers to establish referral criteria for an investigation and specify cases which must be referred directly to a Fitness to Practise Panel. Question 8-8: Should the statute impose more consistency in relation to the criteria used by regulators to refer cases for an investigation or the cases that must be referred directly to a Fitness to Practise Panel? INVESTIGATION 8.32 Once the regulator has determined that an allegation has been made, it is required to carry out an investigation. Until recently, the only exception was the Pharmaceutical Society of Northern Ireland which was given no specific investigatory powers. Instead, complaints about a registrant’s fitness to practise were referred typically to the Department of Health, Social Services and Public Safety. However, the Northern Ireland Assembly has recently legislated to reform many aspects of the Society’s legal framework, including the introduction of a new Scrutiny Committee to investigate allegations of impaired fitness to 142
practise. 26 Investigation Committees 8.33 Most of the regulators are required by their governing legislation to establish an Investigation Committee. The purpose of this Committee is to decide whether a case should proceed to a fitness to practise hearing, or should be disposed of in some other way. At the General Optical Council, for example, all allegations about fitness to practise must be first considered by the Investigation Committee with a quorum of five members. 27 8.34 The composition of the Investigation Committees can include professionals and lay persons. For example, the General Optical Council’s Investigation Committee is composed of optometrists, dispensing opticians, an ophthalmogist and members of the public. 28 As well as relying on the expertise of its members, Investigation Committees can obtain expert reports in cases when a matter falls outside of its expertise. Practice varies on whether the parties are present, or whether the case is heard solely on the basis of documentary evidence. Case examiners 8.35 Case examiners are professional or lay persons appointed by the regulator for the purpose of exercising the functions of the Investigation Committee. The use of case examiners has been developed by the General Medical Council with the aim of ensuring that the investigation process is faster, more efficient and reduces the workload of the Investigation Committee. 8.36 The General Medical Council fitness to practise rules provide that the Registrar must refer all allegations, except those that concern a conviction resulting in a custodial sentence, to a medical and lay case examiner. Once the allegation has been considered, the case examiners may decide unanimously that the matter should not proceed, to issue a warning, to refer the case to the Investigation Committee or Fitness to Practise Committee, to invite the registrant to comply with undertakings, or to initiate a referral to the Interim Orders Panel. 29 If the case examiners do not agree, the case is referred to the Investigation Committee. The General Optical Council has published proposals for the introduction of a case examiners process, similar to the system established by the General Medical Council. 30 26 Pharmacy (1976 Order) (Amendment) Order (Northern Ireland) 2012. 27 Opticians Act 1989, s 13D(5) and General Optical Council (Committee Constitution Rules) Order of Council 2005, SI 2005 No 1474, r 10. 28 General Optical Council (Committee Constitution Rules) Order of Council 2005, SI 2005 No 1474, r 9. 29 General Medical Council (Fitness to Practice) Rules Order of Council 2004, SI 2004 No 2608, r 8. 30 General Optical Council, Amendments to the Fitness to Practise Rules: Consultation (2011). 143
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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
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Provisional Proposal 2-18: The Gove
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2.119 But we also consider it impor
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PART 3 MAIN DUTY AND GENERAL FUNCTI
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asset”. 10 The courts have also r
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practise is impaired. Thus, in maki
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interests of its members. Under our
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3.36 In our view, the need for gene
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PART 4 GOVERNANCE 4.1 All of the re
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egulators would be placed directly
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powers to investigate and intervene
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4.30 A regulator not included in ta
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Education and training 4.39 Most co
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must be lay or that there should be
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4.57 The General Medical Council ha
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4.66 Moreover, it is not evident th
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PART 5 REGISTERS 5.1 A key statutor
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5.9 However, the significance of re
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5.18 In effect, statutory powers wo
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5.25 Finally, a small number of the
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Voluntary registers 5.33 Our provis
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Council may register a person (or g
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through negligence on the part of a
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5.61 We propose that the statute sh
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communicated, which have no formal
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the statute should impose the same
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5.90 In some cases, the right to ap
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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,
Page 150 and 151: of working around their legislative
Page 152 and 153: 8.22 Some of the regulators, such a
Page 156 and 157: Assessments 8.37 Most regulators ha
Page 158 and 159: (1) an Investigation Committee whic
Page 160 and 161: THRESHOLD TEST 8.52 Having undertak
Page 162 and 163: egulators accept undertakings given
Page 164 and 165: hearings or other safeguards, espec
Page 166 and 167: epeated. Second, following an inves
Page 168 and 169: Provisional view 8.84 The current p
Page 170 and 171: PART 9 FITNESS TO PRACTISE: ADJUDIC
Page 172 and 173: of the individual circumstances of
Page 174 and 175: practise process to be considered i
Page 176 and 177: to set up and the new arrangements
Page 178 and 179: oversee their Panel appointment pro
Page 180 and 181: the regulators to ensure that Panel
Page 182 and 183: 9.50 For most regulators the fitnes
Page 184 and 185: enable the regulators to deliver ma
Page 186 and 187: (3) a private hearing is necessary
Page 188 and 189: Question 9-16: Should the statute p
Page 190 and 191: and final sanction”. 63 We theref
Page 192 and 193: Question 9-22: Should the statute g
Page 194 and 195: found to be unfit to practise. 73 W
Page 196 and 197: accountable, consistent, transparen
Page 198 and 199: above. The Council for Healthcare R
Page 200 and 201: Provisional Proposal 9-32: The stat
Page 202 and 203: 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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Provisional Proposal 5-15: The stat
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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 9-13: The stat
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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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Regulation of Health and Social Care Professionals Consultation

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