On 2 April 2014 the final report and draft Bill were published in relation to the Regulation of Health and Social Care Professions. The Bill’s aim is “to create a clear, modern and effective legal framework for the regulation of health and social care professionals”.
The project was referred to the Law Commission in September 2010. Its scope was to review UK law relating to the regulation of healthcare professionals (UK wide) and social workers (England only).
The project affects nine regulatory bodies responsible for regulating 32 professions in the UK. Around 1.5 million professionals will be affected by the changes proposed in the draft Bill.
The draft Bill
Key elements of the Bill include:
- Regulators are to be given powers to make/amend rules relating to registration, education and standards. This is something that previously would require approval by the Government and has led to significant delays in effecting regulatory change.
- A single set of overarching objectives for all regulators to encourage consistency in the approach to decision making and to demonstrate a clear statement of the purpose of professionals’ regulation.
- The main objective of a regulator will be to “protect, promote and maintain the health, safety and wellbeing of the public”.
- Regulators should establish and maintain a register of professionals who are qualified and fit to practise. Notably: a) The Government would be given power to add, remove or alter parts of the register and introduce other systems of registration. b.) There would be specific minimum requirements as to content of the register.
- The Government can introduce barring schemes, listing those who are prohibited from practising.
- There would be a formal appeals process, with a further right of appeal to the higher courts.
- There would be duties on regulators to determine professional and education standards, including continuing professional development. This includes the power to approve courses and institutions and set standards in relation to proficiency, professional performance, conduct and ethics. An individual’s failure to comply with these standards may result in fitness to practise proceedings.
- Collaboration is encouraged –any two or more regulators should be able to exercise their functions jointly should they wish, through delegating certain functions to another regulator. The Professional Standards Authority will be required to promote this cooperation.
Fitness to Practise
Impaired fitness to practise is a key aspect of the regulation of health and social care professionals. Existing grounds for considering an individual to be impaired have been modified.
The new grounds are as follows:
a. Deficient professional performance
b. Disgraceful misconduct
c. Inclusion on a barred list
d. Determination of impairment by another regulator
e. Adverse physical or mental health
f. Insufficient proficiency in knowledge and use of English language
g. Convictions/cautions or other court disposals
Regulators should refer any case for preliminary consideration where an allegation of impairment has been made. Certain cases – for example, vexatious allegations or where five years have passed – cannot continue past the preliminary consideration stage where it is not in the public interest to proceed.
Certain other cases can be referred straight to a fitness to practise panel – for example where there are certain criminal convictions – and there is to be an automatic removal system for the most serious criminal convictions.
Regulators are given flexibility in terms of how they should investigate allegations, including powers to demand disclosure of information and establish systems for hearings.
The test for referrals to a fitness to practise panel would be the ‘realistic prospect’ test.
If the case does not continue beyond investigation stage, there would be a range of alternative steps open to regulators, including the issue of advice/warnings, agreeing undertakings or allowing voluntary removal of an individual from the register.
The format and procedural rules for fitness to practise hearings remain largely the same, including the right to representation, the constitution of panels and the principle of fair and just case management.
Sanctions following a finding of impaired fitness to practise include advice, warnings, conditions, suspension and removal from the register.
There will be a new system of adjudication whereby regulators can appeal panel decisions which do not achieve sufficient protection of the public.
The new regulations should provide a more prompt and efficient way of progressing fitness to practise proceedings, which would be welcomed by all in the sector. The wider scope of the grounds under which fitness to practise can be called into question highlights the changing nature of both the sector and the UK itself. Much of what is currently working in terms of format of the hearing itself is retained. The early disposal of vexatious cases will also eliminate unnecessary stress for registrants and reduce the costs involved in bringing such a case for regulators, insurers and registrants alike and can only be seen as a positive step.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.