Department of Health and Social Care, Consultation: Regulating healthcare professionals, protecting the public.

As promised in the White Paper, a public consultation was opened last week, proposing a new legislative framework for regulating healthcare professionals. The consultation covers four key areas over 110 pages. The most important proposals for fitness to practise practitioners to be aware of include:

Governance and Operating Framework

• In addition to the statutory objectives of the regulators, key "duties" are proposed; a duty to co-operate; specific duties in relation to transparency; and a duty to assess the proportionality of changes to rules and procedures before they are introduced
• Ability for regulators to set their own fees and longer-term fee arrangements, without Privy Council oversight, and to charge for services provided to third parties, eg approval of educational establishments or courses, on a cost recovery basis
• Allow regulators to delegate functions to outside establishments, including other regulators, eg fitness to practise
• Allow regulators to establish their own committees, eg Investigating Committee, Fitness to Practise Committee etc.
• Widening data handling, sharing and collection between regulators, law enforcement authorities, education providers, professional bodies - including those representing registrants - employers and government agencies
• Bringing the GDC and GPhC under the remit of the default powers of the Privy Council

Education and Training

• Proposals build on the Law Commissions' recommendation that regulators should have greater autonomy over how they regulate pre- and post-registration education, conduct and practice, including the setting of standards in education and training

Registration

• Give all the statutory regulators standardised powers to carry out their registration functions
• A requirement for information to be published about a registrant's registration status and history, as well as annotate a registrant's entry if necessary for the protection of the public
• Standardised set of summary only criminal offences covering the misuse of a protected of title and registration, to apply to all regulators. They should not be strict liability offences, but require a degree of intent to deceive others
• A further offence of making a false representation about another person in relation to protected titles (or qualifications or registration)
• Introduction of a new offence of fraudulently procuring or attempting to procure, the making, amendment, removal or restoration of an entry into a regulator’s register
• Consideration to widening the discretionary power of Registrars to refuse an applicant for registration where criteria for registration has been met (as currently is the position at the GMC)
• Removal of the GMC’s provisions relating to the licence to practise, instead using the system of annotation on the single register
• New power for Registrars to suspend, rather than remove, registration for failure to pay fees, failure to maintain up to date contact details, failure to provide any information reasonably required by the regulator pursuant to its statutory objectives and functions and failure to meet revalidation and renewal requirements
• Removal of GOC student register
• Removal of some international registration requirements in order to encourage and streamline recruitment of overseas healthcare professionals

Fitness to practise

• A three stage Fitness to Practise process across the regulators: initial assessment; case examiners and Fitness to Practise panel
• Provision for a separate power for regulators to address the non-compliance of registrants to undergo assessments or respond to reasonable requests for information, similar to the current GMC scheme
• Removal of the five year rule for investigations into Fitness to Practise
• Allowing cases to be more closely considered, and closed, at the initial assessment stage
• Giving case examiners a broader range of measures to conclude a case by consent, including issuing a warning, applying conditions of practice for up to 12 months, suspending registration for up to 12 months, or removal from the register
• Case examiners can propose interim measures, or amendments to interim measures by way of review, including conditions of practise and suspension, which would come into effect if consented to by a registrant
• Removal of the GMC’s right to appeal Fitness to Practise panel decisions, as per the recommendation in the Williams Review
• All case examiner decisions to be made public unless exceptional reasons apply
• If a registrant does not respond within 28 days of a proposal by the case examiner to conclude the case through an accepted outcome, the proposed measure will come into force
• Provide a right for the Registrar, or anyone, to request a review of a fitness to practise decision made by a case examiner, or made at the initial assessment stage of a case
• Remove heads of impairment relating to health, conviction or lack of English, and incorporate such cases into the two heads of impairment of lack of competence and misconduct
• The power for Fitness to Practise panels to make reasonable requests for information from Registrants and to compel witnesses to appear where necessary
• The ability for Fitness to Practise panels to issue warnings, published for two years, where fitness to practise is not found to be impaired
• Provision for the early review of a conditions of practise or suspension order, on application from either a registrant or the regulator
• Automatic removal where a registrant is convicted of a listed offence (based on the list in Schedule 3 of the Social Work Regulations)
• All Fitness to Practise decisions must be published, unless exceptional reasons apply
• Proposed introduction to bring Physician Associates ("PAs") and Anaesthesia Associates ("AAs") under statutory regulation by the GMC.

Details

The consultation closes on 16 June 2021. It is intended that draft legislation will be proposed, initially relating to the GMC, with a plan to implement the legislation by Spring 2022. Legislation will then be brought forward to cover the other regulators.

In addition to the consultation, an independent review has been commissioned. The review will consider the wider proposals related to fitness to practise in the White Paper, including reducing the number of statutory regulators; removing a profession from regulation; extending the ability for regulators to delegate functions; and clarifying that other groups could be brought into regulation.

A further review has been commissioned to consider whether statutory regulation remains appropriate for currently regulated professions.

Laura's Opinion

The consultation has been welcomed by the statutory regulators and the PSA. The proposed removal of the GMC's right to appeal MPTS decisions has particularly been applauded by the medical profession, and long awaited since the Williams Review in June 2018. The PSA will retain its right to appeal decisions of all regulators under s.29 of the National Health Service Reform and Health Care Professions Act 2002. It is not proposed that their powers extend to appeals against case examiners decisions.

The ability to set standards in education could allow for a more flexible system for regulators to target specific training and assessment in a number of more complex areas of practice. For example, a recurring issue in midwifery and obstetrics has been the lack of high quality training and assessment in the interpretation of cardiotocograph traces (CTGs). The current proposals could allow for the GMC and NMC to set minimum standards for pre- and post-qualification CTG interpretation education and assessment, to raise national standards.

Proposals to allow regulators access to information from the police may lead to the regulators undertaking criminal record checks on witnesses and registrants - something long overdue in the opinion of the author. It is likely, and desirable, that disclosure may be subject to its own set of rules.

Registrants will undoubtedly be concerned about the level of information which must, under the proposals, be made public about them. It is unclear to what extent a Registrant's regulatory history will be required to be published. Most regulators adopt a regime where decisions are only published, unless the Registrant agrees otherwise, where current impairment of fitness to practise is found. The potential impact on professional lives of full decisions, in all cases, being published is enormous, particularly in those professions where reputation is key.

The removal of the health head of impairment, taking such allegations into lack of competence or misconduct, is one of the more controversial proposals in the consultation. If approved, it is hoped that the word "sanction" will no longer be used to describe an order upon outcome. Can health be properly framed as mitigation in misconduct proceedings? Can it fairly be said that a health condition could amount to a lack of competence? It is doubtful.

The introduction of a more robust initial stage is likely to have a significant impact upon the number of cases referred to the case examiners. It will allow for greater scrutiny of evidence referred and the appropriate closure of cases at an earlier stage. Early engagement by Registrants, long encouraged by Regulators, will now take on a crucial importance.

The proposal for case examiners to have the ability to suspend or remove registration is potentially concerning. Whilst it is understood that these powers would only be available where the registrant consents to the findings and outcome, or where a registrant has failed to respond to a proposal, concerns remain, particularly for unrepresented registrants. The scheme would rely upon a full and fair investigation having been undertaken and a high quality of decision making at this second stage. It is unclear whether the case examiners will resolve important legal arguments, such as the admissibility of evidence. It is not intended that this stage becomes a negotiation with Registrants. It seems the case examiners will present a "take or leave it" outcome. Registrants may feel unduly pressured into accepting findings that do not accurately reflect the facts of the case.

Furthermore, there may be a number of reasons why a Registrant does not respond to a case examiners decision within 28 days, for example if a Registrant is out of the country or otherwise away from home. The routes to overturning the outcome in such circumstances appears to be a Registrar's Review or appeal to the High Court.

It is proposed that the case examiners have the ability to make final decisions about impairment. What is not clear from the consultation document, is whether or not that decision would remain final in the event that the Registrant did not accept the proposed outcome. It is presumed not. Where findings of fact or impairment are challenged, a case ought to be sent to stage three, the Fitness to Practise panel. It seems that a greater degree of engagement by Registrants at the initial assessment and case examiner stages will be required. The intention being that there will be fewer Fitness to Practise hearings in future.

It remains to be seen if the proposed powers of non-compliance will extend to non-compliance with panel directions or the returning of case management documents. Currently there are no penalties applicable to regulators for non-compliance with panel directions. Without an equivalent penalty for the regulators, there is the potential for procedural unfairness. The consultation is silent on the issue of costs in the proceedings. With a greater degree of control over procedure, it is possible this will be allowed for in Fitness to Practise Rules.

The power of the Registrar to review decisions from both the initial assessments and the case examiners stage appears to introduce a further right of review of decisions, other than to the High Court. The powers are proposed to be limited to decisions which the Registrant considered was materially flawed, and/or on the basis of new information which would have, wholly or in part, led to a different decision. A review could be undertaken on the grounds that the Registrar considers that the decision may not be sufficient to protect the public, and/or may be necessary for the prevention of injustice to the registrant. The Registrar's Review may lead to a lack of finality for Registrants, particularly where such an application is open to "anyone", presumably including the regulator themselves.

The GMC, as the named leader for the proposed reforms, appears not to be at risk of closure. The remaining regulators it seems therefore may be at risk of redundancy or merger, which will be considered in the independent review. If all regulation is to be streamlined and standardised, it makes sense to reduce the number of regulators performing, substantially, the same functions. It is possible that Fitness to Practise will be delegated to a smaller number of regulators. This also makes sense where some regulators will be better able to incorporate the reforms into their current processes.

Whatever the outcome of the consultation and independent reviews, the government has expressed a firm resolve on reform which is likely to dramatically alter the landscape of healthcare regulation. Reform is long overdue. The regulators and, no doubt, professional bodies will be carefully considering their responses.