Regulation of Health and Social Care Professionals Consultation

3.13 An alternative explanation is that public protection and maintaining confidence in
the profession are overlapping concepts in part, but essentially separate. But if
this is true, then it becomes necessary to explain the relationship between them.
The Merrison Committee’s report implies that public protection and preserving
public confidence are two separate but closely woven strands which should be
equally weighted. However, this fails to explain why public protection is identified
as the main statutory objective.
3.14 A further interpretation is that public protection is the primary duty of the
regulators, and maintaining confidence in the profession should be viewed as
consequential and therefore relevant insofar that it can assist the regulator in
public protection. However, this does not accord with case law which confirms
that regulatory intervention can be justified primarily on the basis of preserving
confidence in the profession rather than public protection. 13
Provisional view
3.15 The governing legislation taken as a whole does not establish clearly the primary
objective of health and social care professional regulation. Although most of the
legislation provides that the main duty of the regulator is public protection, the
precise form of wording often varies. Furthermore, public protection is not
mentioned at all as the main duty of several regulators. Establishing a single
primary duty for all the regulators would encourage a consistent approach to
decision-making, and provide registrants and the public with a clear statement of
the purpose of professional regulation. A clearly defined objective has been
identified by the Better Regulation Taskforce as being vital to the proper targeting
of regulatory regimes and a necessary aspect of proper accountability. 14
3.16 There are cogent arguments for establishing public protection clearly as the
primary duty for all the regulators. As noted above, public protection has been
long established as the overarching purpose of professional regulation and is
already stated in most of the governing legislation. However, we are concerned
that a main duty based entirely on public protection may inadvertently distort
understanding of the role of professional regulation. In our view, the proper role
of regulation should be understood in more positive terms as ensuring proper
standards of practice and reducing the need to protect the public from
professionals whose fitness to practise is impaired. In contrast, a public
protection duty emphasises a disciplinary model for regulation based on fitness to
practise proceedings and provides that the proper role of the regulators is to
protect the public from miscreant practitioners.
3.17 We therefore provisionally propose that the duty should provide that the
regulators must protect the public by ensuring proper standards for safe and
effective practice. The reference to ensuring proper standards does not refer to
the specific statutory tasks of issuing codes of conduct or standards of
proficiency. It is a far broader concept that encompasses the need to raise the
standards of the profession overall and reduce the instances in which regulator
intervention is needed to protect the public from registrants whose fitness to
13 For example, see Yeong v General Medical Council [2009] EWHC 927 1923 (Admin),
[2010] 1 WLR 548 and Ige v Nursing and Midwifery Council [2011] EWHC 3721 (Admin).
14 Better Regulation Taskforce, Principles of Good Regulation (2003).
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