Regulation of Health and Social Care Professionals Consultation

hearings or other safeguards, especially in cases which may affect public
confidence in the regulatory system. 56 There may be ways in which the statute
could provide additional safeguards, for example by ensuring that the regulators
maintain an audit trail to ensure public confidence in cases where there is no
public hearing. This could include, for example, a record appearing in the register
and/or on the website. We accept that there may be concerns that this may
discourage registrants from entering into consensual disposals. There may also
be ways in which the legal framework could encourage a fuller disclosure of
information and the proposed sanction or outcome at an earlier stage in the
investigation by the regulator.
8.70 In order to future proof the new legal framework, we believe there should be a
mechanism to allow new powers to be added and for powers to be removed. In
our view, this is a decision best left to Government due to the public interest in
such matters. Furthermore, there would be concerns about giving the regulators
such a broad-ranging and unchecked power to, for example, introduce any form
of power at the investigation stage. We, therefore, propose that the Government
should be given a regulation making power to add new powers to the above list,
or remove any powers. Since any such regulations must take the form of a
statutory instrument, Parliament would have oversight over such matters.
8.71 We are conscious that Parliamentary Counsel will choose the appropriate
language to be used in the legislation, but in some areas the implications of
certain terms carry important messages for the public and practitioners. One such
area is the language used in relation to sanctions. In Part 9 we invite further
views on the nomenclature used for the sanctions available to Fitness to Practise
panels at the adjudication stage. We also welcome views on the terminology
used in our proposed list above to describe the powers available to the regulators
at the investigation stage.
Provisional Proposal 8-16: The regulators should have powers to issue or
agree the following at the investigation stage: (1) warnings; (2) undertakings;
(3) voluntary erasure; and (4) advice to any person with an interest in the case.
The regulators would be given broad powers to make rules governing the use
of such powers. This would include rules governing who or which body can
issue them and the circumstances in which the powers can be agreed or
imposed.
Question 8-17: Should the statute require that any decision to use any power
listed in provisional proposal 8-16 at the investigation stage must be made or
approved by a formal committee or Fitness to Practise Panel? Alternatively,
should the powers of the CHRE to refer decisions of Fitness to Practise
Panels to the High Court be extended to cover consensual disposals?
56 See, for example, The Shipman Inquiry Fifth Report: Safeguarding Patients, Lessons from
the Past – Proposals for the Future (2004) Cm 6394, para 25.253 and Council for
Healthcare Regulatory Excellence, Performance Review of the Medical Council of New
Zealand (2010) para 7.31.
152