Regulation of Health and Social Care Professionals Consultation

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PUBLIC CONSULTATION 2.37 Consultation can be an important procedure through which the regulators are held to account by the public for the exercise of their statutory functions. When performing specific tasks – such as the issuing of guidance, codes of conduct, regulations, rules, competencies and standards – the regulators are normally required to consult extensively. 2.38 Some of the consultation requirements include duties to consult specific groups. For example, the General Chiropractic Council is required to consult representatives of practising chiropractors before issuing or varying a code of practice and the General Optical Council when making rules in relation to its Companies Committee must consult organisations that “represent the interests of substantial numbers of business registrants”. 22 In places, the legislation also requires the regulators to consult internally with one of its statutory committees; for example, the General Osteopathic Council must consult its Education Committee on matters relating to education, training, examinations or tests. 23 2.39 Some of the consultation requirements are more general. For example, the General Social Care Council is required “to consult any persons it considers appropriate to consult” before issuing or varying a code of practice. 24 Some of these general duties to consult include an illustrative list of consultees. For example, the General Pharmaceutical Council is required before undertaking most of its functions to consult such persons it considers appropriate, including: (1) registrants; (2) employers of registrants; (3) professional bodies or organisations appearing to the Council to represent registrants; (4) users of the services of registrants; (5) persons or bodies commissioning or funding the services provided by registrants or at registered pharmacies; (6) persons carrying on a retail pharmacy business at a registered pharmacy; and (7) persons or bodies providing, assessing, regulating or funding education and training. 25 2.40 Similar illustrative lists are contained in the governing legislation of the Health Professions Council and Nursing and Midwifery Council, although the 22 Chiropractors Act 1994, s 19(3) and Opticians Act 1989, s 3(3). 23 Osteopaths Act 1993, ss 11(3) and 14(6). 24 Care Standards Act 2000, s 62. 25 Pharmacy Order 2010, SI 2010 No 231, arts 5, 36 and 66. 22
equirement is not to consult any appropriate person but any appropriate representative of any these groups. 26 2.41 Duties to consult do impose certain legal standards, including the following: (1) consultation must take place at a time when proposals are still at a formative stage, so the decision maker must have an open mind; (2) the authority must give sufficient reasons for a proposal so as to enable intelligent consideration and response; (3) adequate time must be given for consideration of the proposals by consultees; and (4) consultation responses must be conscientiously taken into account when the ultimate decision is taken. 27 2.42 In addition, the duties imposed on the regulators to consult are subject to the requirements of the Equality Act 2010 including having due regard to the need to eliminate discrimination and to advance equality of opportunity in relation to, for example, age, disability, gender and race. 28 This should mean that the regulators engage in a meaningful way with a diverse range of individuals and communities and that, for example, consultation documents are provided in a range of accessible formats and events are publicised widely. Provisional view 2.43 It is essential for the regulators to consult widely before issuing or setting for example guidance, codes of conduct, fees, rules, competencies and standards. This ensures that the regulatory bodies command the confidence of the public, registrants and other key groups who are involved with, or affected by, professional practice. Duties to consult can also ensure that the regulators remain subject to some degree of public scrutiny and accountability. Indeed, under our proposed system with the removal of the Privy Council and Government roles, the importance of consultation as a means of holding the regulators to account is heightened. 2.44 For all the importance of public law standards for consultation, it is important to recognise that duties to consult are limited and do not impose any requirement to accept or act in accordance with the views, including those of the majority, expressed at consultation. 2.45 In our view, the current legal framework which imposes different consultation requirements on individual actions or decisions is unnecessarily complex. We propose that the statute itself should set out a core central duty to consult which is imposed on each regulator before it issues or varies: 26 Health Professions Order 2001, SI 2002 No 254, art 3(14) and Nursing and Midwifery Order 2001, SI 2002 No 253, art 3(14). 27 R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, 258. 28 Equality Act 2010, s 149. 23
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 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 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
Page 78 and 79: 4.66 Moreover, it is not evident th
Page 80 and 81: PART 5 REGISTERS 5.1 A key statutor
Page 82 and 83: 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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Page 252 and 253:
(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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