Regulation of Health and Social Care Professionals Consultation

(1) an Investigation Committee which carries out all inquiries;
(2) investigations by the Registrar or another individual;
(3) two or more case examiners who carry out all investigations; or
(4) a combination of individuals, case examiners, and an Investigation
Committee carrying out inquiries.
8.45 In effect, each regulator would be given greater flexibility to establish an
investigation structure which best suits its circumstances, and the ability to adopt
a more proportionate approach to regulation.
8.46 It is important for all the regulators to be able to initiate specialist assessments if
appropriate, including but not limited to medical and professional performance
assessments. We therefore propose that all the regulators should have the ability
to establish a procedure for undertaking assessments during an investigation. We
do not make any proposals on the content of the rules or whether the power
should be exercised which would be left to the regulators to decide.
8.47 We also propose that the statute should give all the regulators a general power to
require the disclosure of information where the fitness to practise of a registrant is
in question. As a matter of public law, an express provision is unnecessary
because it can be implied into the regulators’ broad investigation function. 37 But
the express inclusion of such a power is a useful way of reinforcing and clarifying
this power. For example, in General Dental Council v Savery the statutory power
to require information was described as indicating that the public interest in the
regulator undertaking an investigation was so strong that it overrode private
interests of preserving confidentiality. 38 We propose that the content of the power
should include all the different aspects of the existing powers mentioned in the
earlier discussion. We welcome further views on whether all of these aspects are
useful and sufficiently clear in practice.
8.48 Some aspects of the existing powers to require information have been the subject
of judicial criticism. In particular it has been questioned why a regulator is given
powers to obtain information from any person other than the registrant whose
fitness to practise is in question, who is “the very person who might be thought to
have the best information and documents relating to the allegation which falls to
be examined”. 39
8.49 One of the reasons why the power to require information is not extended to
include the registrant in question, may be the registrant’s right against selfincrimination.
However, any privilege against self-incrimination is not absolute
and would need to be balanced for example against the need to protect the
public. It is notable that in Australia the equivalent power to require information
does apply to the registrant in question but that the legislation also provides that
37 Attorney-General v Great Eastern Ry Co (1880) 5 App Cas 473.
38 General Dental Council v Savery [2011] EWHC 3011 (Admin) at [48].
39 As above, at [37].
146