Regulation of Health and Social Care Professionals Consultation

eform. For example, the regulators can already involve other persons or
organisations in carrying out their functions, and a regulator may contract with
another body to carry out specific tasks on its behalf, subject to the regulator
retaining liability for the exercise of the functions and possessing the factual and
other information necessary to enable it to do so. 11
12.19 For some regulators there may be a deep-seated reluctance to engage in shared
activities. In part, this may reflect a fear that greater joint working across the
professional regulators may strengthen arguments for merger. The sharing of
functions may also be seen as limiting a regulator’s ability to adapt to new
developments in the profession it is regulating. We welcome further views on the
perceived practical and legal difficulties associated with joint working.
12.20 While the current legal framework may contain few barriers to collaboration, it
may be more accurate to say that the legislation is essentially silent or neutral on
this issue. In other words, the law does not support or provide incentives to
collaborate. Given the inherent risk that regulators may err on the side of caution,
in our view there is a need for our proposed framework to promote rather than
simply allow joint working. We therefore provisionally propose that the statute
should include a permissive statement to the effect that each regulator may carry
out any of its functions jointly with any other regulators or organisations. This
would help to encourage informal joint working by making it clear that such
activity is lawful.
12.21 We also propose that the statute should enable more formal partnership
arrangements to be entered into between the regulator and one or more other
organisations in relation to the exercise of their statutory functions. The
prescribed arrangements may include arrangements:
(1) authorising other organisations to carry out any of the prescribed
functions of the regulator;
(2) for payments to be made to the organisations to carry out the prescribed
tasks; and
(3) for the provision of staff, goods or services in connection with any
arrangement.
12.22 The statute would also provide that any such arrangements do not affect the
liability of the regulator for the exercise of any of its statutory functions. By
establishing such a formal procedure for joint arrangements we expect that the
regulators would feel more confident about the legal basis for undertaking joint
working, especially for more complex tasks and those that involve their core
functions. Examples of the use of this power might include authorising the
maintenance of the register by a commercial company; the recruitment of Council
members, panel members and staff by a recruitment agency; the investigation of
fitness to practise cases by a firm of lawyers; and the adjudication of fitness to
practise by another regulator or an outside body.
11 D Feldman (ed), English Public Law (2004) p 730.
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