Regulation of Health and Social Care Professionals Consultation

of the individual circumstances of the case. But even if this were possible, the
statute would only be able to set out certain minimum standards needed to
comply with Article 6. This might encourage the regulators to look towards
achieving these minimum standards, rather than encouraging them to promote
actively the rights guaranteed by the Convention. We also think it is unnecessary
to attempt to set out the need to ensure compliance when the regulators are
already required to comply with Article 6 at the adjudication stage.
9.9 An alternative would be for the statute to simply require the regulators to ensure
that they establish a structure which is Article 6 compliant without taking into
account the role of the higher courts. This would give the regulators discretion on
how to implement this requirement, while also encouraging the regulators to
promote actively Convention rights. We welcome further views on the correct
approach to adopt.
Question 9-1: Should the statute require the regulators to ensure that they
establish a structure which is compliant with Article 6 of the European
Convention on Human Rights without taking into account the role of the
higher courts?
THE SEPARATION OF INVESTIGATION AND ADJUDICATION
9.10 In law, the regulators are responsible for the investigation and adjudication of
allegations of impaired fitness to practise. This has led to criticism that as setter
of standards and prosecutor, the regulators’ independence as an adjudicator is
open to question. In 2004, the Fifth Report of the Shipman Inquiry recommended
the clear separation of adjudication from the General Medical Council’s other
functions through the establishment of an independent judicial body. 8 This
recommendation was accepted in principle by the previous Government.
Office of the Health Professions Adjudicator
9.11 The 2007 White Paper, Trust, Assurance and Safety set out the intention to
transfer the adjudication functions of the General Medical Council to a new
independent body called the Office of the Health Professions Adjudicator. 9 This
would be a separate body responsible for recruiting and training panellists,
running hearings and adjudication. It was to be funded by fees paid by the
referring regulator. The benefits were said to include “conspicuous independence
and hence greater public confidence”, as well as consistency across the
regulators and “efficiency gains from both the introduction of modern tribunal
practices and through economies of scale”. 10
9.12 The Health and Social Care Act 2008 provided for the Office of the Health
8 The Shipman Inquiry Fifth Report: Safeguarding Patients, Lessons from the Past –
Proposals for the Future (2004) Cm 6394, paras 27.204 to 27.210.
9
Trust, Assurance and Safety – the Regulation of the Health Professions in the 21 Century
(2007) Cm 7013, paras 4.36.
10 Office of the Health Professions Adjudicator, Written Evidence to the Health Select
Committee (GMC 09) (2011) para 2.2.
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