Regulation of Health and Social Care Professionals Consultation

away from self-regulation in health care was in part the result of a series of high
profile instances of regulatory failure, such as those set out by the Bristol Royal
Infirmary, Alder Hey and Shipman inquires.
10.5 Prior to the establishment of the CHRE, the Government performed a similar role
to that of a meta-regulatory role insofar as it was the Department of Health that
had general oversight of the regulators and was involved in any changes to the
regulators’ rules. However, the final report of the Bristol Royal Infirmary Inquiry
argued that there was a need for a body to perform the meta-regulatory role in a
more systematic manner since the Department of Health was said not to be
performing that role with appropriate vigour, efficiency or independence. 4
Accordingly, the report made a recommendation that had already appeared in
The NHS Plan to create an overarching body to co-ordinate and act as a forum
for the regulators. 5
10.6 The creation of the CHRE has highlighted an alternative approach to health care
regulation which has been described as a “systemic model” of regulation rather
than a “discrete case model”. 6 A discrete case model is primarily concerned with
being reactive to individual cases and adopts a fault-based standard by focusing
on the role of individual practitioners. It is argued that the regulators tend to adopt
this model. However, a systemic model focuses on the lessons that can be
learned from individual cases and seeks out the reasons behind systemic
failures. The CHRE’s position allows it to take a bird’s eye view of the regulators
and so undertake a systemic approach.
10.7 However, the benefits of having a body which is separate from Government to
perform this role arise from the independent scrutiny that such a body can
provide. The CHRE is therefore frequently justified as an alternative to direct
Government intervention since it performs a supervisory role that might otherwise
fall to Government, such as reviewing the performance of the regulators. This can
be seen historically in the history of health care regulation where, as set out in
Part 1, the state has stepped in to alter the structures and procedures of the
regulators and thereby has in practice performed the role of a meta-regulator.
10.8 The Health and Social Care Bill 2011 proposes to reform the CHRE. It will be
renamed the Professional Standards Authority for Health and Social Care
and will be financed through a levy on the regulatory bodies that it oversees. It
will also be able to generate income from other activities, such as the
accreditation of voluntary registers. The CHRE will no longer come under the
ambit of the Department of Health or any other department, and hence will no
longer be a non Departmental Body or Arms Length Body. It is possible that this
will make CHRE a Public Corporation, but this will be determined by the Office of
National Statistics once the Act has Royal Assent. The reformed CHRE will
4 Learning from Bristol: the Report of the Public Inquiry into Children's Heart Surgery at the
Bristol Royal Infirmary 1984 -1995 – Final Report (2001) Cm 5207, p 315.
5 Department of Health, The NHS Plan: a plan for investment, a plan for reform (2000).
6
L Mulcahy, “Health Care Professions: A Case Study in Regulatory Dilemmas” (2011)
[unpublished paper].
192