Regulation of Health and Social Care Professionals Consultation

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(2) to guarantee minimum procedural requirements (such as those relating to the procedures for hearings undertaken by Fitness to Practise Panels); and (3) to establish certain core requirements in the public interest (for example, a single overarching duty for professional regulation and setting the size and composition of Councils). 2.15 We therefore propose that the new legal framework should impose consistency where necessary in order to achieve one or more of these aims, but otherwise the regulators should be given greater autonomy in the exercise of their statutory responsibilities and to adopt their own approach to regulation in the light of their circumstances and resources. 2.16 However, drawing a clear distinction between issues where consistency is necessary, on the one hand, and where discretion is important on the other is not always easy. For example, the establishment of a statutory process for the investigation of complaints could be seen to benefit the complainant and the alleged wrongdoer, but there are also strong arguments for giving the regulators discretion to adopt a proportionate approach to managing risk on such matters. In a specific context, these are difficult judgments to make and we might not have got them right. We are interested in your views on whether we have drawn the correct line in this paper. 2.17 Moreover, our general approach to law reform identified above is subject to the regulators being subject to an appropriate level of accountability. The ways in which the regulators would be held to account are discussed in the rest of this Part. Provisional Proposal 2-1: All the existing governing legislation should be repealed and a single Act of Parliament introduced which would provide the legal framework for all the professional regulators. Provisional Proposal 2-2: The new legal framework should impose consistency across the regulators where it is necessary in order to establish the same core functions, guarantee certain minimum procedural requirements and establish certain core requirements in the public interest. But otherwise the regulators should be given greater autonomy in the exercise of their statutory responsibilities and to adopt their own approach to regulation in the light of their circumstances and resources. RULES AND REGULATIONS 2.18 In order to undertake their statutory functions, the regulators are given powers to make rules and regulations which in most cases must be approved by Order of the Privy Council. 9 These Orders are statutory instruments which do not need the direct approval of the Queen (as opposed to Orders in Council which do require such approval). The only exceptions are the General Social Care Council who 9 The Privy Council is a formal body that advises the Monarch in the UK on the exercise of the Royal Prerogative, and is made up mostly of senior politicians who are or have been members of the House of Commons or the House of Lords. 16
have powers to create their own rules and the Pharmaceutical Society of Northern Ireland who can make regulations approved by the Northern Ireland Department of Health, Social Services and Public Safety. 2.19 In the governing legislation, the distinction between rules and regulations is not straightforward. In general terms, rules are used for procedural and operational matters (such as internal governance and fitness to practise hearings), whereas regulations are intended to cover broader territory (such as registrant fees, continuing professional development and revalidation). To a degree it is merely a matter of terminology. Some regulators (such as the General Pharmaceutical Council) have powers to make rules only, even for matters which are covered by regulations for other Councils. 2.20 Not all rules and regulations require Privy Council approval in order to take effect. Whether such approval is needed will be stated in the legislation. For example, the General Medical Council can make regulations about erasure on the basis of failure to pay fees which do not need Privy Council approval. 10 The General Dental Council does not need Privy Council approval for certain rules relating to the education and registration of dental care professionals. 11 Where rules or regulations do not require Privy Council approval before they can take effect, then the procedural requirements end after the Council has made them. 2.21 However, the great majority of rules and regulations do require Privy Council approval. The process is as follows: (1) the regulator proposes new rules or regulations (and in most cases is required to hold a public consultation) and produces a draft instrument with input and advice from the Department of Health; (2) the regulator votes to make the instrument and seals it; (3) the relevant Minister indicates that he or she is content for the draft to be put to the Privy Council; (4) the sealed instrument is put to the Privy Council for approval by two Privy Counsellors; (5) submissions are sent to the Secretary of State for Health in his or her capacity as a Privy Councillor, the Lord President of the Privy Council, and where appropriate the Scottish Ministers; (6) Privy Council approval, if given, takes the form of an Order of Council; (7) the instrument is laid in Parliament (and where appropriate the Scottish Parliament), if there is a laying requirement, together with the Explanatory Memorandum and any impact assessment document; and 10 Medical Act 1983, s 32(2). 11 Dentists Act 1984, s 50C. 17
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 20 and 21: 1.26 The regulation of social care
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 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
Page 70 and 71: 4.30 A regulator not included in ta
Page 72 and 73: Education and training 4.39 Most co
Page 74 and 75: must be lay or that there should be
Page 76 and 77: 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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Page 258 and 259:
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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