Regulation of Health and Social Care Professionals Consultation

2.54 The role of the Privy Council in holding the regulators to account is a historical
feature of the legislative framework which is by common consent a formality. 30
The secretariat defers to the relevant Government department when it is required
to act. In the case of health care professional regulation, it is left to the
Department of Health and their legal group to undertake the vast majority of the
matters formally allocated to the Privy Council. In effect, the Department is the
active player in developing, scrutinising and securing the approval of draft rules
and regulations and the requirement on the regulators to submit reports to the
Privy Council is regarded as nothing more than “a post box to the Department of
Health”. 31
2.55 However, the role of the executive in holding the regulators to account can be
viewed as problematic. A key principle of health and social care professional
regulation is that the regulators should be autonomous bodies, independent of
the Government, and constitutionally insulated from day-to-day political
pressures. 32 The need for independence is particularly important because in
many situations professionals act as agents of the state (for example, assessing
access to work and for detention under the Mental Health Act 1983) and it may
be important for public confidence that they are seen to do so in a way that is
independent and just. The current system, which is heavily reliant on input from
the Department of Health and its legal advisers, is at odds with the need to
ensure such independence.
2.56 In recent times, there have been attempts to bolster the Parliamentary
accountability of the regulators. First, the Council for Healthcare Regulatory
Excellence, itself a statutory body and accountable to Parliament, has been given
responsibility for reviewing the operation of the regulators. The Council
undertakes a programme of detailed scrutiny of each of the regulators, the results
of which are published annually in a performance review. The performance
review is laid in Parliament and the devolved assemblies (see Part 10).
2.57 In 2008, the Government asked Niall Dickson, then Chief Executive of the Kings’
Fund, to chair a working group on enhancing public confidence in the regulators.
The report recommended that Parliament should consider establishing a joint
committee of both Houses to enhance Parliamentary accountability. The
recommendation envisaged this Committee’s work tying in with the Council for
Healthcare Regulatory Excellence’s performance review function, such that the
Committee could question the regulators and hold them to account on the basis
(in part) of the Council’s findings. 33
30 See, for example, House of Commons Health Committee, Revalidation of Doctors: Fourth
Report of Session 2010–11, HC 557, para 4.
31 Department of Health, Implementing the White Paper Trust, Assurance and Safety:
Enhancing Confidence in Healthcare Professional Regulators: Final Report (2008) para
3.4.
32 See, for example, Trust, Assurance and Safety – the Regulation of the Health Professions
in the 21 Century (2007) Cm 7013, paras 1.5 to 1.7.
33 Department of Health, Implementing the White Paper Trust, Assurance and Safety:
Enhancing Confidence in Healthcare Professional Regulators: Final Report (2008).
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