Regulation of Health and Social Care Professionals Consultation

found to be unfit to practise. 73 Where cost orders are available, the rule in civil
litigation that costs follow automatically the event does not apply to regulatory
bodies because they are performing a public protection role. Decisions for costs
are discretionary and the Panel must consider all relevant facts and
circumstances. 74 Cost orders can include those which order that the costs of a
legal representative be disallowed by reason of their conduct of the proceedings.
9.100 The Council for Healthcare Regulatory Excellence has argued that the ultimate
effectiveness of case management is dependent on having enforcement
procedures in place, such as the use of cost orders for “culpable noncompliance”.
75 Further, it has been argued that the award of costs should be
routine on the basis that it is “absurd for the vast majority of registrants to
subsidise the small number who are found unfit to practise”. 76
9.101 Not all of the regulators seek a costs jurisdiction. For example, the Health
Professions Council argues that the use of cost orders is “disproportionate and
not sufficiently aligned to the purpose of those proceedings”. This is on the basis
that they are bureaucratic and expensive to implement, and are indicative of a
retributive model of justice rather than a system based on public protection.
Moreover, it is argued that a key component of fitness to practise proceedings is
involvement with those proceedings and insight, both of which would be
undermined if the registrant was facing costs. 77
Warnings
9.102 Most of the regulators have powers to issue warnings. 78 In formal terms these are
not sanctions since they do not constitute a restriction on registration, but they do
appear on the public registers. Warnings are used in cases where conduct has
fallen below acceptable standards but there is no need for erasure or conditions.
9.103 For the majority of regulators warnings are available only following a finding of
impaired fitness to practise. However, the General Medical Council can only
issue warnings where there is no finding of impairment, while other regulators
such as the General Pharmaceutical Council have powers to issue warnings
where there is a finding of impairment. 79
9.104 Warnings often appear on the register for a set period of time: for example, at the
73 For example, General Dental Council (Fitness to Practise) Rules Order of Council 2006, SI
2006 SI 1663, r 19(6) and General Pharmaceutical Council (Fitness to Practise and
Disqualification Rules) Order of Council 2010, SI 2010 No 1615, r 46.
74 Beresford v Solicitors Regulation Authority [2009] EWHC 315 (Admin).
75 Council for Healthcare Regulatory Excellence, Modern and Efficient Fitness to Practise
Adjudication: CHRE’s Advice for Secretary of State (2011) para 8.6.
76 General Optical Council, New FTP Rules (Council Paper) (2011) p 4.
77 Health Professions Council, CHRE Report: Modern and Efficient Fitness to Practise
Adjudication: CHRE’s Advice for Secretary of State (2011) para 9.2.
78 Several different terms are used across the regulators, including cautions, warnings and
admonishments. This Part uses the term “warning” to describe all of these sanctions.
79 Pharmacy Order 2010, SI 2010 No 231, art 54(2)(a).
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