Regulation of Health and Social Care Professionals Consultation

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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. 50
Provisional Proposal 3-2: The statute should not include a statement setting out the general or principal function(s) of the regulators. Question 3-3: Should the statute include guiding principles which would apply to all decisions made by the regulators, and if so what should they be? Question 3-4: Should the statute include a general power for the regulators to do anything which facilitates the proper discharge of their functions? 51
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Law Commission Scottish Law Commiss
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CODE OF PRACTICE ON CONSULTATION Th
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The default powers of the Privy Cou
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Review hearings 187 Should regulato
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FOREWORD BY THE CHAIRMEN OF THE LAW
Page 12 and 13: TABLE OF ABBREVIATIONS CHRE Council
Page 14 and 15: approval imposes burdens on the Dep
Page 16 and 17: 1.14 Second, recent times have witn
Page 18 and 19: constrain the costs of the current
Page 20 and 21: 1.26 The regulation of social care
Page 22 and 23: 1.34 We will be undertaking a wide
Page 24 and 25: on several occasions. 4 2.3 There a
Page 26 and 27: workers), some are largely self-emp
Page 28 and 29: (2) to guarantee minimum procedural
Page 30 and 31: (8) the instrument is scrutinised b
Page 32 and 33: subject to scrutiny by the Joint Co
Page 34 and 35: PUBLIC CONSULTATION 2.37 Consultati
Page 36 and 37: (1) that which is binding (such as
Page 38 and 39: 2.54 The role of the Privy Council
Page 40 and 41: Parliament”. 34 It is likely that
Page 42 and 43: (1) a report on the exercise of its
Page 44 and 45: earlier in this Part, Orders in Cou
Page 46 and 47: 2.87 But the retention of section 6
Page 48 and 49: safety and well-being of the public
Page 50 and 51: Provisional Proposal 2-18: The Gove
Page 52 and 53: 2.119 But we also consider it impor
Page 54 and 55: PART 3 MAIN DUTY AND GENERAL FUNCTI
Page 56 and 57: asset”. 10 The courts have also r
Page 58 and 59: practise is impaired. Thus, in maki
Page 60 and 61: interests of its members. Under our
Page 64 and 65: PART 4 GOVERNANCE 4.1 All of the re
Page 66 and 67: egulators would be placed directly
Page 68 and 69: powers to investigate and intervene
Page 70 and 71: 4.30 A regulator not included in ta
Page 72 and 73: Education and training 4.39 Most co
Page 74 and 75: must be lay or that there should be
Page 76 and 77: 4.57 The General Medical Council ha
Page 78 and 79: 4.66 Moreover, it is not evident th
Page 80 and 81: PART 5 REGISTERS 5.1 A key statutor
Page 82 and 83: 5.9 However, the significance of re
Page 84 and 85: 5.18 In effect, statutory powers wo
Page 86 and 87: 5.25 Finally, a small number of the
Page 88 and 89: Voluntary registers 5.33 Our provis
Page 90 and 91: Council may register a person (or g
Page 92 and 93: through negligence on the part of a
Page 94 and 95: 5.61 We propose that the statute sh
Page 96 and 97: communicated, which have no formal
Page 98 and 99: the statute should impose the same
Page 100 and 101: 5.90 In some cases, the right to ap
Page 102 and 103: not complied with continuing profes
Page 104 and 105: could be made to provide better inf
Page 106 and 107: and provide links to information ab
Page 108 and 109: which practitioners have undertaken
Page 110 and 111: the Government in its guidance to d
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eing met by the local education pro
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6.13 Second, our legal framework wo
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Medical Council must satisfy the re
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6.31 The Health Professions Council
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(1) which qualifications are approv
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6.48 Finally, there are a number of
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Good Medical Practice which covers
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and other optical appliances, such
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6.72 We also believe that the new l
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looked at in detail only when conce
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professionals to remain registered
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Misconduct 7.6 Most of the governin
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(1) an order under section 246(2) o
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THE FITNESS TO PRACTISE FINDINGS 7.
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Option 2: consolidation of the exis
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(a) has in the past acted and/or is
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that many of the regulators have de
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PART 8 FITNESS TO PRACTISE: INVESTI
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language is not English. 7 However,
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of working around their legislative
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8.22 Some of the regulators, such a
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undertake this task, for example, i
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Assessments 8.37 Most regulators ha
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(1) an Investigation Committee whic
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THRESHOLD TEST 8.52 Having undertak
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egulators accept undertakings given
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hearings or other safeguards, espec
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epeated. Second, following an inves
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Provisional view 8.84 The current p
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PART 9 FITNESS TO PRACTISE: ADJUDIC
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of the individual circumstances of
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practise process to be considered i
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to set up and the new arrangements
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oversee their Panel appointment pro
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the regulators to ensure that Panel
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9.50 For most regulators the fitnes
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enable the regulators to deliver ma
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(3) a private hearing is necessary
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Question 9-16: Should the statute p
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and final sanction”. 63 We theref
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Question 9-22: Should the statute g
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found to be unfit to practise. 73 W
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accountable, consistent, transparen
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above. The Council for Healthcare R
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Provisional Proposal 9-32: The stat
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that the sanction is clearly inappr
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away from self-regulation in health
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may appoint employees and has a wid
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Provisional Proposal 10-3: Appointm
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general functions should be retaine
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the imposition of a relevant sancti
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independence of the new Medical Pra
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11.5 However, it may be that the co
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Act 1972. For example, the Medicine
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is fit to carry on such a business
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extend to all businesses or to all
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Council and Care Quality Commission
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in the 2011 White Paper Enabling Ex
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12.13 The Council for Healthcare Re
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12.23 We welcome views on the examp
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places a general duty to cooperate
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equired to give due consideration t
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professions are not subject to the
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attach to systemic failures to impl
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Order 1976. The definition of the U
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oute to UK registration. 30 The Gen
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13.39 The potential advantages of t
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(6) professional bodies that repres
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Provisional Proposal 4-2: The statu
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(5) the appointment of visitors and
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Provisional Proposal 8-13: The powe
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Provisional Proposal 10-3: Appointm
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PART 13: CROSS BORDER ISSUES Provis
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GENERAL SOCIAL CARE COUNCIL It shal
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(8) Standards Committee GENERAL OST
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(22) Licentiate in medicine and sur
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(68) Speech therapist NURSING AND M
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