Regulation of Health and Social Care Professionals Consultation

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1.26 The regulation of social care professionals falls within the legislative competence of each country. England, Scotland, Wales and Northern Ireland have now introduced separate arrangements for the regulation of social workers and/or other social care staff. 27 As noted previously, the remit of our review extends only to the regulation of social workers in England. Therefore, any potential changes to regulatory functions or their implementation discussed in this paper, so far as the social work profession is concerned, will only extend to the regulation of social workers practising in England. 1.27 Health care and health services are devolved in each settlement, subject to certain exceptions. Accordingly, the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly have legislative competence, and the Governments/Executives in each country have executive powers and responsibilities. The NHS is therefore now administered differently in each of the four countries of the UK, and each has its own systems regulators. This is of major significance to the UK regulators. Professional regulation is affected by the context in which health services are delivered. Further, education and training are broadly devolved, which impacts importantly on the statutory role of the regulators to ensure proper standards of education. Current areas of significant differences in policy in both these areas include clinical governance, prescription drug charges, charging for personal and nursing care for older people, and tuition fees for students. 28 1.28 The scope of our project does not extend to a review of the devolution settlements in the UK. However, the responsibilities of each of the three devolved administrations – legislatures and executive arms – give them a strong legitimate interest in health care professional regulation. The regulatory system has its roots in a time before devolution. One of the challenges of the project is to ensure that the legitimate interests of the devolved administrations are properly recognised and expressed in the development of regulation. Our provisional approach to doing so is set out at the various relevant parts of the consultation paper. Legal references 1.29 Although the case law for professional regulation is spread out over three jurisdictions, in substantive terms the law is the same. In this consultation paper we have therefore drawn indiscriminately from the case law in England and Wales, Scotland and Northern Ireland. 26 Health Act 1999, s 60. 27 Care Standards Act 2000, s 54; Regulation of Care (Scotland) Act 2001; and Health and Personal Social Services Act (Northern Ireland) 2001. 28 See, H Cheyne and others, “United but Divided? The Need to Consider the Practical Consequences of Devolved UK Government on Midwifery Education and Practice” (2011) 27 Midwifery 770. 8
STRUCTURE OF THE CONSULTATION PAPER 1.30 This paper is divided into 13 Parts: (1) Part 2 considers a number of preliminary matters which concern how the new legal framework should be structured and how the regulators should be made accountable for the exercise of their powers; (2) Part 3 is concerned with the main duty of the regulators to protect the public and their general functions; (3) Part 4 discusses the governance arrangement for the regulators and how their internal arrangements (such as the constitution of the General Council and internal committees) are provided for in law; (4) Part 5 considers the statutory function of the regulators to establish and maintain a register of individual professionals; (5) Part 6 is concerned with how the regulators ensure proper standards of professional education, conduct and practice; (6) Parts 7, 8 and 9 discuss the fitness to practise process, and how it should be provided for in our proposed framework: (a) Part 7 considers how impaired fitness to practise is determined; (b) Part 8 looks at the investigation of allegations; and (c) Part 9 discusses the adjudication of fitness to practise cases; (7) Part 10 looks at the role performed by the Council for Healthcare Regulatory Excellence; (8) Part 11 considers the powers of the regulators to regulate businesses; (9) Part 12 is concerned with the functions of the regulators that overlap with other organisations and areas of law; and (10) Part 13 looks at the management of cross border issues. 1.31 In addition to these substantive Parts, we have set out all of the provisional proposals made in this consultation paper in Appendix A. RESPONDING TO THIS CONSULTATION PAPER 1.32 In this paper we make a number of provisional proposals for law reform. In doing this, we emphasise that these represent our initial view about how the law should be reformed and we will be reviewing these proposals on the basis of the responses to this consultation paper. 1.33 Furthermore, the views we express about the regulation of this sector should not be read across into any other sector, professional or not. For instance, our views would not necessarily be the same in the context of the regulation of the legal professions. 9
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 18 and 19: constrain the costs of the current
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
Page 68 and 69: 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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Regulation of Health and Social Care Professionals Consultation

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