Regulation of Health and Social Care Professionals Consultation

provisionally registered persons, by ensuring standards which the
Council considers are necessary for the safe and effective practice of
the registrants’ profession. 5
3.6 However, this proposal was not taken forward in the resulting legislative reforms.
The reason given was that respondents supported the principle of giving greater
emphasis to the need and importance of public protection, rather than the
wording of the provision itself. 6 However, the wording was reflected subsequently
in the main duty of the General Pharmaceutical Council introduced in 2010. 7
3.7 Public protection is a broad objective and can be used to justify various
regulatory interventions. The public who need protecting can include the
individual complainant, service users, potential service users or the public in
general, and the form of intervention may vary depending on which public is
identified. For example, if the regulator is seeking primarily to protect the
individual complainant then sanctions against the professional may be more
likely, whereas if the aim is to protect future service users then the question of
rehabilitation may be more relevant. Of course this distinction is not absolute;
sanctions protect future service users too, and rehabilitation will benefit the
individual complainant if they receive the same care from the professional in the
future. Nevertheless, public protection should not be viewed as a “unitary
rationale for intervention”. 8 The approach of the regulator will depend on the
particular circumstances of the individual case. The challenges presented by the
public protection duty are evident particularly when considering its relationship to
the principle of maintaining confidence in the profession.
Maintaining confidence in the profession
3.8 The governing legislation makes no express reference to maintaining confidence
in the profession as being a duty of the regulator. However, the courts and in
practice the regulators have long recognised that the need to maintain
confidence has an important role to play in regulating health and social care
professionals.
3.9 This is evident in the 1975 report of the Merrison Committee, set up to examine
the role of the General Medical Council. The Merrison Committee stated that the
Council should be able to take action in the interests of the public, and that the
public interest had “two closely woven strands”, namely the need to protect
individual patients and the need to protect the reputation of the profession. 9 This
position is also apparent in the judgment given by the Court of Appeal in Bolton v
Law Society, and adopted in Gupta v General Medical Council, where the
profession’s reputation was described as “the profession’s most valuable
5 Department of Health, Health Care and Associated Professions (Miscellaneous
Amendments) Order 2008: A Paper for Consultation (2007) para 3.5.
6 Department of Health, Health Care and Associated Professions (Miscellaneous
Amendments and Practitioner Psychologists) Order 2009: Consultation Report (2009) pp
18 to 20, 21 and 23.
7 Pharmacy Order 2010, SI 2010 No 231, art 6(1).
8 For further discussion of the point see F Zacharias, “The Purpose of Lawyer Discipline”
(2003) 45 William and Mary Law Review 2.
9 Report of the Inquiry into the Regulation of the Medical Profession (1975) Cmnd 6018.
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