Regulation of Health and Social Care Professionals Consultation

practise is impaired. Thus, in making this proposal we are not seeking to narrow
the core duty of public protection. The focus remains on public protection but
there is an additional acknowledgement that this is achieved through the broad
range of activities undertaken by the regulators, not just fitness to practise
proceedings. Thus, all the statutory functions of the regulators – registration,
setting standards for education, conduct and practice, and taking action where
the standards are not met – would flow from this duty.
3.18 We also think that this duty should apply to the Council for Healthcare Regulatory
Excellence. Although the Council is not tasked directly with ensuring proper
standards of practice in the professions, it does scrutinise and assist the
regulators in performing this role.
Maintaining confidence in the profession
3.19 In our view, a major deficiency of the existing legislative framework is the failure
to clarify, or even to mention, the relationship between public protection and
confidence in the profession.
3.20 We welcome views on the extent to which maintaining confidence in the
profession is a legitimate aim of professional regulation. The dangers of
preserving public confidence becoming a regulatory aim in itself may include a
perception that the self-interest of the profession is being allowed to creep in.
Furthermore, the concept of preserving public confidence in the profession can
be seen as unhelpfully vague; it is difficult to gauge levels of public confidence
and to what extent they need protecting. Commentators have argued that notions
of professional reputation are left over from a bygone age when the nature of the
public’s trust was very different. In modern times it is possible to “trust members
of a profession with matters of personal health care and yet not trust their
judgment or probity in other areas”. 15
3.21 However, protection of the public is through the maintenance of proper
professional standards, which in turn result in high levels of confidence in the
profession. The two concepts, namely, the protection of the public and
maintenance of confidence in the profession are thus interlinked and cannot be
looked at entirely separately. Although there have been criticisms of the concept
of maintaining confidence in the profession, it is not something that can be
divorced from the duty that we provisionally propose.
3.22 There are two approaches that the statute could take in order to clarify the
relationship between public protection and confidence in the profession, which
we would like to test at consultation. The first would be to establish clearly that
public protection is the overarching duty of the regulators and confidence in the
profession is relevant insofar as it relates to this duty. In effect, the regulators
would not be able to intervene in cases where the registrant’s conduct does not
endanger the health, safety or well-being of the public or raise issues concerning
the quality of care provided. Such cases may lead to action in other legal
systems, such as criminal justice prosecution or civil actions, but the primary role
15 P De Prez, “Self-Regulation and Paragons of Virtue: The Case of ‘Fitness to Practise’”
(2002) 10 Medical Law Review 28, 52. See also P Case, “The Good, the Bad and the
Dishonest Doctor: The General Medical Council and the ‘Redemption Model of Fitness to
Practise’” (2011) 31 Legal Studies 4, 591.
46