Professional Discipline and Regulatory Law Team’s Update: Summer 2021.

Welcome to the Professional Discipline and Regulatory Law Team’s Summer 2021 update

Crucible Response to Consultation, Health and Social Care Bill

On 16 June 2021 Crucible provided a response to the Department of Health and Social Care consultation, Regulating healthcare professionals, protecting the public. You can read our response here:

Guidance Updates

A number of regulators are tentatively moving towards more "in person" hearings. The Nursing and Midwifery Council has published updated hearing guidance:

30 March 2021, NMC Guidance during the Covid-19 emergency Pandemic

The NMC has also produced a detailed guidance document, Taking Account of Context, 29 March 2021. The document hints at a much more rounded approach to fitness to practise and contains plenty of useful material. Staying with nursing, The Royal College of Nursing has produced a very helpful guidance document, Nursing Workforce Standards, May 2021. Both documents are essential reading for anyone appearing before an NMC Fitness to Practise Committee.

In inquests, practitioners should be aware of the new Guidance No. 41, Use of "Pen Portrait" Material, published on 5 July 2021, and Guidance No.39, Recovery from the Covid-19 Pandemic, revised 21 May 2021.

Compulsory vaccinations for healthcare workers

The controversial issue of compulsory vaccinations has been back in the headlines this summer secondary legislation was passed by the House of Commons to mandate vaccinations for the approximately 1.5 million workers in England's adult social care sector from 11 November 2021. Scotland, Wales and Northern Ireland have indicated that they have no plans to make vaccination mandatory, citing high levels of uptake among staff.

The new Health and Social Care Act 2008 (Regulated Activities)(Amendment) (Coronavirus) Regulations 2021 will require anyone working in a care home to be fully vaccinated, unless there are clinical reasons against vaccination. Religious or other philosophical reasons will not suffice. The Statutory Instrument amends the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 12, Safe Care and Treatment. The Care Quality Commission can prosecute or take regulatory action for a breach of regulation 12. The Department of Health issued guidance on 4 August 2021.

It remains to be seen whether the provisions will be subject to legal challenge.

In other news

The Independent has reported that The Serious Crime Directorate of Kent Police is making inquiries concerning a potential corporate or gross negligence manslaughter investigation into the maternity services at East Kent Hospital NHS Trust. Such a prosecution would be only the second of its kind.

Following the announcement of a full public inquiry [link to article] in May 2021, we await any details from government. A chair and/or panel has yet to be appointed. Given the complexity, it seems less likely that the inquiry will begin by Spring 2022, as planned.

Case Law Updates

Libby Anderson has considered the judgment in the case of Towuaghantse v General Medical Council [2021] EWHC 681 (Admin)

Claire Robinson has published a case law update following General Medical Council v Bramhall [2021] EWHC (2109) (Admin)

AM v Disclosure and Barring Service, the Royal College of Nursing and the National Education Union [2021] UKUT 136 (AAC)

This recent judgment confirms that a refusal of the Disclosure and Barring Service ("DBS") to undertake a review of a barring decision under paragraph 18 of Schedule 3 of the Safeguarding Vulnerable Groups Act 2006 does not fall within the appellate jurisdiction of the Upper Tribunal, but may be susceptible to judicial review.

Anyone who appears on a the Adults or Children's Barred List has the statutory right to ask the DBS to review that decision, in circumstances where either the minimum barring period has passed or if it can be demonstrated to the satisfaction of the DBS, in light of:

(a) information which DBS did not have at the time of the person's inclusion in the list

(b) any change of circumstances relating to the person concerned, or

(c) any error by DBS,

it is not appropriate for the person to be included in the list.

The decision to undertake a review is entirely at the discretion of the DBS. Where however a review is undertaken and the person is not subsequently removed from the Barred List(s), that decision may be open to appeal to the Upper Tribunal, in accordance with section 4(1)(c) of the 2006 Act.

Webinar

Crucible will be hosting a webinar on DBS barring appeals later this year, with details to follow.