Regulation of Health and Social Care Professionals Consultation

odies to those using the services of their registrants and the wider
public, by creating a route to raise concerns about the policies and
approach of the regulators with the CHRE about those bodies falling
within its remit. 23
10.36 However, the scope of the section 28 complaints mechanism will be limited
initially to considering only administrative and policy issues with the regulators to
prevent overwhelming CHRE with “complaints from individuals who simply
disagree with the decisions reached by the regulators”. 24 The CHRE is in the
early stages of providing its advice to the Department of Health on how a scheme
might work, but we understand that it proposes to investigate concerns relating to
maladministration that indicate a systemic problem and raise wider public
protection issues. The CHRE will provide advice to the Government on detailed
proposals for the commencement of section 28 by March 2012. The Department
of Health then intends to consult on draft regulations later in 2012.
Provisional view
10.37 In our view section 28 should be retained in our system. In effect, the
Government will continue to have powers to make regulations for the
investigation by the CHRE into complaints about the way in which a regulator has
exercised its functions. The Government has decided that it will implement the
section 28 power but the remit of the CHRE will be limited. We envisage that any
new regulations introduced would continue to apply under our system.
10.38 In the future, the Government could decide to widen or narrow further the section
28 power. We believe that it is appropriate that this decision continues to rest with
Government. In our view, the section 28 power will become one of the ways in
which the regulators can be held to account and therefore there is a significant
public interest in its use. It will be particularly important that any decision to
extend or reduce the section 28 power is seen to be made independently from
the regulators who in the future will be responsible for funding the CHRE.
10.39 Additionally, this is an area where the provision of information about the
regulators’ internal complaints systems has a role to play. In particular, it is
important that members of the public are aware of alternative avenues through
which to pursue their concerns. This would help prevent complaints being made
to the CHRE prematurely. A duty to provide information is discussed in Part 2.
Provisional Proposal 10-6: The existing power for Government to make
regulations for the investigation by the CHRE into complaints made to it about
the way in which a regulator has exercised its functions should be retained.
REFERENCES TO THE HIGHER COURTS
10.40 Section 29 of the NHS Reform and Health Care Professions Act 2002 gives the
CHRE a power to refer decisions of fitness to practise panels to the High Court in
England and Wales, the Court of Session in Scotland and the High Court in
Northern Ireland. This power can only be used where the CHRE considers that
23
Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff (2011)
Cm 8008, para 3.11.
199