Regulation of Health and Social Care Professionals Consultation

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constrain the costs of the current system for registrants and Government, particularly in the light of the current economic climate. In the context of professional regulation this will involve giving greater independence to the regulators balanced by more effective accountability. 17 (2) Right-touch regulation. Current regulatory approaches in health and social care are influenced heavily by the Hampton principles that regulation should be transparent, accountable, proportionate, consistent and targeted. 18 This can be seen in the promulgation of “right touch regulation” by the Council for Healthcare Regulatory Excellence, which recognises that different contexts expose patients to different risk levels and the use of minimum regulatory force to achieve the desired results. 19 (3) Early intervention. Medical advances and other developments in professional knowledge have brought greater emphasis on education and keeping professionals up to date with new clinical interventions. The proper role of regulation is seen increasingly as ensuring proper standards of practice and reducing the need for disciplinary intervention. This can be seen in developments such as revalidation and employment liaison officers (see Part 6). In contrast, a disciplinary model emphasises intervention once harm has occurred. (4) Remedial measures. The increasing complexity of clinical practice may mean a less punitive and more tolerant approach to regulation. Where appropriate, the regulators are developing ways of ensuring a greater emphasis on “remediation”, rehabilitation and support for professionals who struggle to cope. 20 In part, this can be seen in the moves towards consensual disposals and the introduction of a two-stage approach to impaired fitness to practise (see Part 7). (5) Multi-disciplinary working. Changes in technology, training and practice are making the boundaries between professions more blurred. For example, nurses’ prescribing powers have expanded in recent years and care assistants perform tasks limited previously to registered nurses. The crossover and blurring of roles may mean that regulatory systems based purely on job title are increasingly difficult to manage. (6) Cross-regulator working. Health regulation has become a multi agency activity. In addition to the professional regulators, there are systems regulators such as the Care Quality Commission, vetting and barring schemes to protect children and vulnerable adults, employment 17 Better Regulation Executive, Reducing Regulation Made Simple: Less Regulation, Better Regulation and Regulation as a last Resort (2010) and Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers (2011) Cm 8008, pp 3 to 4. 18 P Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement (2005) p 7. 19 Council for Healthcare Regulatory Excellence, Right-Touch Regulation (2010). 20 See, for example, Academy of Medical Royal Colleges, Remediation and Revalidation: report and recommendations from the Remediation Work Group of the Academy of Medical Royal Colleges (2009). 6
disciplinary processes, complaints procedures, the ombudsmen and criminal and civil justice agencies. There is considerable overlap between these systems, and in the future joint working is likely to increase. The trend towards multi-disciplinary teams may also mean more joint working between the professional regulators. Devolution 1.21 The general position is that the legislation governing the health care professional regulators is of UK extent. The exceptions are the Pharmacy Order 2010 which extends to Great Britain, and the Pharmacy (Northern Ireland) Order 1976 which extends to Northern Ireland. 21 1.22 Under the Scotland Act 1998 regulation of existing health professions is reserved to the Westminster Parliament but regulation of health professions regulated since devolution is devolved to the Scottish Parliament. This has meant that the General Dental Council, General Pharmaceutical Council and Health Professions Council are now accountable to the Scottish Parliament as well as the UK Parliament in relation to certain professional groups, namely operating department practitioners, practitioner psychologists, dental nurses, dental technicians, clinical dental technicians, orthodontic therapists and pharmacy technicians. The Scottish Parliament would also have legislative competence in relation to new groups brought into professional regulation. 1.23 The Scotland Bill 2010 proposes that the Scotland Act 1998 be amended so that all regulation of health professions is reserved to Westminster. 22 This is a controversial policy. The Scottish Government opposes the change, and the Scottish Parliament Committee at the Scottish Parliament has recommended that legislative consent is not given to the provision. 23 1.24 In Wales, the regulation of health professionals is not devolved. 24 In Northern Ireland, health professional regulation is not an excepted or reserved matter, and the Northern Ireland Assembly therefore can legislate in this area. 25 However, although legislative competence is devolved, the principal modern instrument for legislating for professional regulation – section 60 orders – is not available to the Northern Ireland Assembly. 26 The UK Government has on a number of occasions in recent years used section 60 orders to legislate on a UK wide basis. 1.25 Legally, therefore, professional regulation is a UK responsibility, with important but limited current exceptions: operating department practitioners, practitioner psychologists, dental nurses, dental technicians, clinical dental technicians, orthodontic therapists and pharmacy technicians, in relation to Scotland, and pharmacy in relation to Northern Ireland. 21 Great Britain refers to England, Scotland and Wales but does not include the Channel Island and Isle of Man which are included as part of the British Islands. 22 Scotland Bill 2010, cl 13. 23 Scottish Parliament Scotland Bill Committee 1st Report, 2011 (Session 4), vol 1, SP Paper 49, recommendation 20. At the time of writing, the Parliament has yet to debate the report. 24 Government of Wales Act 2006, sch 7, pt 1, para 9. 25 Northern Ireland Act 1998, s 4(1). 7
Page 1: Law Commission Scottish Law Commiss
Page 4 and 5: CODE OF PRACTICE ON CONSULTATION Th
Page 6 and 7: The default powers of the Privy Cou
Page 8 and 9: Review hearings 187 Should regulato
Page 10 and 11: FOREWORD BY THE CHAIRMEN OF THE LAW
Page 12 and 13: TABLE OF ABBREVIATIONS CHRE Council
Page 14 and 15: approval imposes burdens on the Dep
Page 16 and 17: 1.14 Second, recent times have witn
Page 20 and 21: 1.26 The regulation of social care
Page 22 and 23: 1.34 We will be undertaking a wide
Page 24 and 25: on several occasions. 4 2.3 There a
Page 26 and 27: workers), some are largely self-emp
Page 28 and 29: (2) to guarantee minimum procedural
Page 30 and 31: (8) the instrument is scrutinised b
Page 32 and 33: subject to scrutiny by the Joint Co
Page 34 and 35: PUBLIC CONSULTATION 2.37 Consultati
Page 36 and 37: (1) that which is binding (such as
Page 38 and 39: 2.54 The role of the Privy Council
Page 40 and 41: Parliament”. 34 It is likely that
Page 42 and 43: (1) a report on the exercise of its
Page 44 and 45: earlier in this Part, Orders in Cou
Page 46 and 47: 2.87 But the retention of section 6
Page 48 and 49: safety and well-being of the public
Page 50 and 51: Provisional Proposal 2-18: The Gove
Page 52 and 53: 2.119 But we also consider it impor
Page 54 and 55: PART 3 MAIN DUTY AND GENERAL FUNCTI
Page 56 and 57: asset”. 10 The courts have also r
Page 58 and 59: practise is impaired. Thus, in maki
Page 60 and 61: interests of its members. Under our
Page 62 and 63: 3.36 In our view, the need for gene
Page 64 and 65: PART 4 GOVERNANCE 4.1 All of the re
Page 66 and 67: 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
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could be made to provide better inf
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and provide links to information ab
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which practitioners have undertaken
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the Government in its guidance to d
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eing met by the local education pro
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6.13 Second, our legal framework wo
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Medical Council must satisfy the re
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6.31 The Health Professions Council
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(1) which qualifications are approv
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6.48 Finally, there are a number of
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Good Medical Practice which covers
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and other optical appliances, such
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6.72 We also believe that the new l
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looked at in detail only when conce
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professionals to remain registered
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Misconduct 7.6 Most of the governin
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(1) an order under section 246(2) o
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THE FITNESS TO PRACTISE FINDINGS 7.
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Option 2: consolidation of the exis
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(a) has in the past acted and/or is
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that many of the regulators have de
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PART 8 FITNESS TO PRACTISE: INVESTI
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language is not English. 7 However,
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of working around their legislative
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8.22 Some of the regulators, such a
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undertake this task, for example, i
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Assessments 8.37 Most regulators ha
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(1) an Investigation Committee whic
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THRESHOLD TEST 8.52 Having undertak
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egulators accept undertakings given
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hearings or other safeguards, espec
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epeated. Second, following an inves
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Provisional view 8.84 The current p
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PART 9 FITNESS TO PRACTISE: ADJUDIC
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of the individual circumstances of
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practise process to be considered i
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to set up and the new arrangements
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oversee their Panel appointment pro
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the regulators to ensure that Panel
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9.50 For most regulators the fitnes
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enable the regulators to deliver ma
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(3) a private hearing is necessary
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Question 9-16: Should the statute p
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and final sanction”. 63 We theref
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Question 9-22: Should the statute g
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found to be unfit to practise. 73 W
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accountable, consistent, transparen
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above. The Council for Healthcare R
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Provisional Proposal 9-32: The stat
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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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(5) the appointment of visitors and
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Provisional Proposal 8-13: The powe
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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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