Regulation of Health and Social Care Professionals Consultation

accountable, consistent, transparent and targeted”. 84
9.109 The only exception to this approach is in relation to powers to issue financial
penalties and costs awards. The availability of such powers is not widespread
amongst the regulators, although in the legal and financial regulatory sectors the
use of cost awards, in particular, is more widespread. 85 However, the use of
financial penalties and cost orders in health regulation is contentious. It may be
argued that fitness to practise proceedings are conducted in the public interest,
and are properly funded not by costs against individuals but rather by the fees of
registrants as a whole. However, on the other side it may be difficult to justify the
increasing burden on registrants and to say why good professionals should be
expected to subsidise the miscreant. This also raises issues in relation to fairness
and in particular equality of arms, including in relation to access to legal
representation. 86 Costs orders may not be effective for the regulators of low-paid
professions, where obliging the regulators to engage in a detailed assessment of
the individual’s financial means is in itself a costly exercise. Moreover, the
availability of a costs regime against the regulator is similarly a contentious issue,
and generally the courts have been keen to restrict the availability of costs
awards against regulators on the basis of the “chilling effect on the exercise of
[the regulator’s] regulatory obligations on the public advantage”. 87 We welcome
further views on the use of financial penalties and cost awards in health and
social care professional regulation. On balance, we think that their introduction
should be a matter for Government to decide through a regulation-making power.
9.110 We therefore propose that Fitness to Practise Panels across the regulators
should have powers to impose the following:
(1) erasure from the register;
(2) suspension;
(3) conditions; and
(4) warnings.
9.111 In addition, we propose that all Panels should have powers to agree undertakings
and voluntary erasure. We also propose that the regulators should be given
powers to introduce immediate orders. The regulators would be given powers to
make rules governing such orders including which sanctions such orders apply
to. Alternatively, the regulators could use their Interim Order rule making powers
(see above) in order to achieve a similar outcome.
84
Council for Healthcare Regulatory Excellence, Harmonising Sanctions: CHRE Position
(2008) para 7.
85 Cost awards are available, for example, for the relevant Panels of the Institute and Faculty
of Architects, the Institute of Chartered Accountants in England and Wales and the
Solicitors Disciplinary Committee.
86
B Kemp and B Lloyd, “Costs in regulatory proceedings: a contentious subject?” (2011) The
Regulator (Autumn 2011) 3, 3 to 5.
87 Baxendale-Walker v Law Society [2009] EWHC 643 (Admin) at [21].
184