Regulation of Health and Social Care Professionals Consultation

of the regulators would be public protection.
3.23 Alternatively, the duty could confirm that regulatory intervention can and should
be justified on the basis of maintaining confidence in the profession. Thus, the
overarching duty of the regulators would be to protect, promote and maintain the
health, safety and well-being of the public and maintain confidence in the
profession, by ensuring proper standards for safe and effective practice.
Other issues
3.24 Some of the current main duties include reference to the particular need to
protect those who need or may need the services of registrants. In our view, the
main duty should be the wider duty to the public. It is unnecessary and potentially
confusing to specify that particular attention should be given to certain groups.
Furthermore, regulatory intervention can extend beyond service users of the
regulated profession. For example, regulators may need to provide general
information for the public (see Part 4), deal with allegations made against
professionals registered with another regulator (see Part 7) and prosecute nonregistrant
service providers who undertake activities which are restricted in law to
registrants (see Part 11).
3.25 Some of the legislation states that the public protection duty applies only to those
functions that affect the health, safety and well-being of the public. 16 In our view,
this statement is at best confusing since all of the regulators’ functions affect the
health, safety and well-being of the public. Our proposed duty would not therefore
include such a statement.
3.26 The precise meaning of a main duty is not defined in legislation. But it is likely
that a court would consider the correct interpretation as being that all the actions
and decisions of the regulator must be construed in the light of this duty. 17 The
difficulty is that the use of the term main duty implies that there might be other
duties or objectives that the regulator must take into account. It may be unclear
whether other duties of the Council should be balanced against the main duty, or
whether the main duty should always prevail over a conflicting duty. We propose
that the statute should refer to the paramount duty of the regulators. This would
mean that it “rules upon and determines the course to be followed” and reflects
the well established position in other areas of law such as the Children Act
1989. 18 However, we recognise that this would introduce a demanding standard
and welcome views on any unintended difficulties.
3.27 There are several other objectives or duties specified in the legislation, such as a
duty to develop the profession. At first blush, the aim of developing the profession
conflicts potentially with the duty of public protection. However, it has been
suggested to us that developing the profession can be a helpful means of
ensuring high standards of professionalism within a nascent and less cohesive
profession. The potential conflict of interest is more evident in the objectives of
the Pharmaceutical Society of Northern Ireland, which include promoting the
16 For example, Opticians Act 1989, s 2A.
17
See, for example, Yeong v General Medical Council [2009] EWHC 1923 (Admin), [2010]
1 WLR 548 at [20].
18 J v C [1970] AC 668, 710 to 711.
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