Regulation of Health and Social Care Professionals Consultation

3.36 In our view, the need for general or principal functions disappears in our
proposed scheme. The regulators would be required when undertaking all their
functions to protect, promote and maintain the health, safety and well-being of
the public (and maintain confidence in the profession) by ensuring proper
standards of practice. In effect, the general function of ensuring proper standards
has been wrapped up in the paramount duty.
3.37 Furthermore, if one of the major advantages of a general duty is the flexibility that
it gives to the regulators, in our view a similar degree of flexibility could be
achieved by giving the regulators broad powers to undertake their functions. This
does not require any general declaratory statement setting out a general or
principal function. Instead, the statute would give the regulators broad powers to
undertake their specific functions, subject only to the paramount duty. In our view,
this would be a clearer and more straightforward way of structuring the legal
framework. We therefore provisionally propose that the statute should not include
a general statement expressing the general or principal function(s) of the
regulators. The only exception is in relation to the Council for Regulatory
Healthcare Excellence which is discussed in Part 10.
3.38 In some cases the regulators are required to co-operate with certain individuals
and bodies when undertaking their functions. In our view this is an important legal
provision and needs to be separated from the notion of general or principal
functions. Duties to co-operate are discussed in detail in Part 12.
3.39 Some regulators are also required to have proper regard to certain matters when
undertaking their general functions, such as the differing interests of different
groups of registrants. This appears to be an attempt to establish guiding
principles for decision-making by the regulators, which has been a successful
innovation used in other jurisdictions. 26 The difficulty is that the matters listed are
selective and do not provide a comprehensive guide for decision-making. For
example, there is no mention of the need to consider the interests of the wider
public or ensure that the functions are carried out efficiently and expeditiously.
We are attracted by the idea of establishing general principles for decisionmaking
and welcome further views on what these principles might consist of.
3.40 We also welcome views on whether the statute should include a general power
for the regulators to do anything which facilitates the proper discharge of their
functions. Our provisional view is that such a power is not necessary given that
the new legal framework will give the regulators broad powers to undertake their
functions. But it may be that the inclusion of a general duty will help to resolve
uncertainty where the necessary legal powers already exist but are not clear, and
encourage the regulators to engage in new approaches and activities.
26 For example, the Children Act 1989 and Mental Capacity Act 2005.
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