Regulation of Health and Social Care Professionals Consultation

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.
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