Regulation of Health and Social Care Professionals Consultation

9.112 In accordance with the main duty of the regulators (see Part 3), we propose that
the test for imposing any of the sanctions listed above should be to protect,
promote and maintain the health, safety and well-being of the public (and
maintain confidence in the profession). 88
9.113 We also propose that the regulators should be given broad powers to make rules
for issuing sanctions and agreeing consensual forms of disposal. For example,
the regulators could establish that erasure is not available in health cases,
cautions are available where there is no finding of impairment or some sanctions
can only be extended by for example a year at a time. In addition, the regulators
will continue to have powers to issue Indicative Sanctions Guidance.
9.114 We appreciate concerns that the rules for imposing the same sanction or
agreeing consensual forms of disposal could vary across the regulators. In our
view, consistency on these matters is less important than giving each regulator
flexibility to decide which provisions are most appropriate in the light of their
individual circumstances. An alternative approach would be for the statute to take
a more prescriptive approach to certain aspects of the rules for issuing sanctions.
However, this would be difficult to achieve in practice because all of the
regulators currently have such varied requirements.
9.115 In order to future proof the new legal framework, we believe there should be a
mechanism to allow new sanctions to be added and for sanctions to be removed
(and consensual forms of disposal). 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 sanction or consensual disposal.
We, therefore, propose that the Government should be given a regulation making
power to add new sanctions to the above list, or remove any sanctions. Since any
such regulations must take the form of a statutory instrument, Parliament would
have oversight over such matters. This power would also apply similarly to
consensual disposals.
Terminology
9.116 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. Just as there is variety in the
availability of different sanctions between the regulators, there is also variety in
the terms used to describe similar sanctions. The introduction of a single statute
offers an opportunity to harmonise the language used to describe the various
sanctions. This would help to ensure a common shared language across the
regulators and assist legal clarity.
9.117 We welcome views on the nomenclature used in our proposed list of sanctions
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The precise form of words will depend on the eventual approach that is taken to the main
duty of the regulators (see Part 3).
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