Regulation of Health and Social Care Professionals Consultation

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12.23 We welcome views on the examples provided above, and on how appropriate and useful such arrangements would be in practice. It is important to emphasise that the use of this power in specific cases would be subject to the duty to consult specified in provisional proposal 2-7. Question 12-3: What are the practical and legal difficulties associated with joint working? Provisional Proposal 12-4: The statute should include a permissive statement to the effect that each regulator may carry out any of its functions in partnership with another organisation. Provisional Proposal 12-5: The statute should enable formal partnership arrangements to be entered into between any regulator and one or more other organisations (including the other professional regulators) in relation to the exercise of their statutory functions. The statute should provide that any such arrangements do not affect the liability of the regulator for the exercise of any of its statutory functions. DUTIES TO COOPERATE 12.24 As noted previously, in order to carry out their statutory functions the regulators depend significantly on other bodies and individuals to provide them with information. This can include information relating to the registrant’s professional performance and conduct, and standards in educational institutions. Statute law can and has been used to encourage cooperation between organisations. 12.25 Most of the governing legislation places a general duty on the regulator in question to cooperate “as far as is appropriate and reasonably practicable” with public and other bodies and individuals concerned with the: (1) employment of registrants; (2) education and training of registrants; (3) regulation or co-ordination of the regulation of other health or social care professionals; (4) regulation of health services; and (5) provision, supervision or management of health services. 12 12.26 Also, most of the legislation specifies that in carrying out its duty to cooperate the Council must have regard to any differing considerations in relation to professional practice which apply in England, Scotland, Wales or Northern Ireland. 13 12 See, for example, Chiropractors Act 1994, sch 1 para 1D; Dentists Act 1984, s 2A; and Medical Act 1983, sch 1 para 9A. 13 See, for example, Opticians Act 1989, sch 1 para 11A(2) and Osteopaths Act 1993, sch 1 para 1D(2). 218
12.27 The duty to cooperate is a target duty since it does not specify which actions constitute co-operation. This is significant in legal terms because general duties are difficult to enforce and it is generally left to the authority in question to decide when, and to what extent, the duty has a practical effect. 14 It is likely that a court would find a breach of this duty only in extreme circumstances, such as where there has been an express refusal to cooperate on unreasonable grounds. 12.28 Elsewhere, the governing legislation sets out more specific duties to cooperate. Some of these are placed on the regulator itself, while others are placed on external bodies. For example: (1) requirements to consult specific organisations and internal committees when the regulators undertake certain tasks such as the issuing of guidance, codes of conduct, regulations, rules, competencies and standards (see Part 2); (2) duties on the regulators to publish their standards and requirements for the approval of education qualifications, and make copies available for the relevant institutions (see Part 6); (3) requirements on the regulators to follow certain steps when withdrawing their approval from education courses, such as notifying the relevant body and providing reasons within a specified time scale (see Part 6); (4) duties on education institutions to comply with any reasonable request for information made by the regulator, and if the institution refuses then the regulator may consider refusing or withdrawing approval from the relevant course (see Part 6); and (5) specific powers for the regulators to require the disclosure of information in cases where the fitness to practise of a registrant is in question (see Part 8). 12.29 The main difference between these requirements and the general duty to cooperate relates to their enforceability. The requirements listed above in most cases make it clear who has the duty, to whom the duty is owed and how the duty must be carried out. Some of the requirements also specify negative consequences that may arise from a failure to undertake the required action. In this sense, many of these requirements are better categorised as duties to undertake certain actions to ensure joined-up working, rather than duties to cooperate. In contrast, general duties to cooperate are more difficult to enforce. 12.30 Also, the Council for Healthcare Regulatory Excellence is placed under a general duty to promote co-operation between regulatory bodies, and between them, or any of them, and other bodies performing corresponding functions (see Part 10). Other existing statutory duties to cooperate 12.31 Statute law in other areas has developed alternative mechanisms for encouraging co-operation between agencies. For example, the NHS Act 2006 14 R v Secretary of State for Social Services ex p Hincks [1980] 1 BMLR 93. 219
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Law Commission Scottish Law Commiss
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CODE OF PRACTICE ON CONSULTATION Th
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The default powers of the Privy Cou
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Review hearings 187 Should regulato
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FOREWORD BY THE CHAIRMEN OF THE LAW
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TABLE OF ABBREVIATIONS CHRE Council
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approval imposes burdens on the Dep
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1.14 Second, recent times have witn
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constrain the costs of the current
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1.26 The regulation of social care
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1.34 We will be undertaking a wide
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on several occasions. 4 2.3 There a
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workers), some are largely self-emp
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(2) to guarantee minimum procedural
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(8) the instrument is scrutinised b
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subject to scrutiny by the Joint Co
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PUBLIC CONSULTATION 2.37 Consultati
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(1) that which is binding (such as
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2.54 The role of the Privy Council
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Parliament”. 34 It is likely that
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(1) a report on the exercise of its
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earlier in this Part, Orders in Cou
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2.87 But the retention of section 6
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safety and well-being of the public
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Provisional Proposal 2-18: The Gove
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2.119 But we also consider it impor
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PART 3 MAIN DUTY AND GENERAL FUNCTI
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asset”. 10 The courts have also r
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practise is impaired. Thus, in maki
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interests of its members. Under our
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3.36 In our view, the need for gene
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PART 4 GOVERNANCE 4.1 All of the re
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egulators would be placed directly
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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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Page 182 and 183: 9.50 For most regulators the fitnes
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Page 186 and 187: (3) a private hearing is necessary
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Page 192 and 193: Question 9-22: Should the statute g
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Page 196 and 197: accountable, consistent, transparen
Page 198 and 199: above. The Council for Healthcare R
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Page 216 and 217: 11.5 However, it may be that the co
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Page 228 and 229: 12.13 The Council for Healthcare Re
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Page 266 and 267: (22) Licentiate in medicine and sur
Page 268 and 269: (68) Speech therapist NURSING AND M
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Regulation of Health and Social Care Professionals Consultation

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