Professional Discipline & Regulatory Team – Quarterly Update – Spring 2021.
30 March 2021
Welcome to the Professional Discipline and Regulatory Law Team’s Spring 2021 update.
Webinar
We are pleased to announce that our webinar series will continue on 13 April 2021 with Martin Goudie QC and Briony Molyneux presenting "Regulating Professionals (2) – Beckwith, a line in the sand or a decision on its own facts?"
If you would like to attend, please email events@crucible.law for an invitation.
White Paper, Health and Social Care Bill
On 11 February 2021 the Department of Health and Social Care published a White Paper, Integration and Innovation: working together to improve health and social care for all. The White Paper sets out legislative proposals for a new Health and Care Bill, intended to come into force in 2022.
Of note are the proposals for the reform of professional regulation (specific consultation considered below):
"The UK model of professional regulation for healthcare professionals has become increasingly rigid, complex and needs to change to better protect patients, support the provision of health services, and help the workforce better meet current and future challenges.
These proposals form part of a wider programme to create a more flexible and proportionate professional regulatory framework that is better able to protect patients and the public."
It is proposed that the Health and Care bill proposes to amend section 60 of the Health Act 1999 giving wide ranging powers to the Secretary of State for Health and Social Care to:
(a) remove a profession from regulation through secondary legislation
(b) abolish an individual health and care professional regulator
- Powers under section 60 already allow for the creation, but not the closure, of regulators through secondary legislation
- It is envisaged that some regulatory functions will be merged across the nine healthcare regulators
- Reducing the number of regulators is consistent with proposals set out in the July 2019 government response to the promoting professionalism, reforming regulation consultation and the November 2020 busting bureaucracy policy paper
There are proposals to allow regulators to delegate functions including:
- the keeping of a register of persons permitted to practise;
- determining standards of education and training for admission to practise;
- giving advice about standards of conduct and performance; and
- administering procedures relating to misconduct and fitness to practise.
- the removal of these restrictions would enable a single regulator to take on the role of providing a function across some or all regulators
It is proposed that the scope of section 60 is widened to include senior NHS managers and leaders and other groups of workers in some form of professional regulation.
There is also a proposal to amend existing legislation to establish a statutory Medical Examiner system within the NHS for the purpose of scrutinising all deaths which do not involve a coroner. The aim is to ensure that every death in England and Wales is scrutinised either by a coroner or an NHS appointed Medical Examiner.
A new, independent, investigatory body, the Health Services Safety Investigations Body ("HSSIB") will be established to "investigate incidents which have or may have implications for the safety of patients in the NHS". Disclosure of investigatory documents would be limited in the Bill. The HSSIB will provide advice, guidance and training to organisations and aims to “create a ‘safe space’ whereby participants can provide information to the HSSIB for the purposes of an investigation in confidence and therefore feel able to speak openly and candidly with the HSSIB".
Following this weeks opening of a government consultation, Regulating Healthcare professionals, protecting the public, Laura Bayley considers the proposed changes and potential implications for registrants facing fitness to practise proceedings.
Guidance Updates
On 17 March 2021, the Lord Chief Justice published guidance on courts recovery, found here: Message from the Lord Chief Justice: Courts Recovery
A number of regulators have produced updated hearing guidance as we move out of lockdown:
- December 2020, NMC, Information about attending hearings during the Covid-19 pandemic
- 5 January 2021, MPTS, Coronavirus (COVID-19): Running hearings while under restrictions
- 4 March 2021, GPhC, Remote hearings during the pandemic: Guidance on how to ensure a case is suitable for a remote hearing
- 4 March 2021, HCPTS, The Health and Care Professions Council (Coronavirus) (Amendment) Rules Order of Council 2021
In inquests, practitioners should be aware of the Chief Coroners Law Sheet No.6 - Maughan, published on 13 January 2021.
There has been an update to the GDC guidance, Guidance for the Practice Committees including Indicative Sanctions Guidance, December 2020. This is essential reading for practitioners appearing at the GDC.
Those who work in regulation of healthcare professionals should be aware of the Joint statement from the Chief Executives of the Statutory Regulators on Regulating in the Pandemic, published on 12 January 2021. The guidance is particularly of relevance in cases where, in response to the demands of working through the pandemic, Registrants have been working outside the scope of their usual practice.
Registrants are encouraged to "use their professional judgement to assess risk and to deliver safe care informed by any relevant guidance and the values and principles set out in their professional standards."
There is welcome recognition of the "highly challenging circumstances" presented to the healthcare workforce. Highlighted is "the need to work cooperatively with colleagues to keep people safe, to practise in line with the best available evidence, to recognise and work within the limits of their competence, and to have appropriate indemnity arrangements relevant to their practice".
Assurance is given that "Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working. We would also take account of any relevant information about resource, guidelines or protocols in place at the time".
With recent anecdotal reports of an increase in referrals, it remains to be seen how the Regulators respond to concerns arising from the pandemic. The guidance is a welcome assurance that the context of any allegations referred will be given heightened consideration.
The Care Quality Commission ("CQC") has updated its Regulation 20 (Health and Social Care Act 2008 (Regulated Activity) Regulations) guidance to providers, The duty of candour: guidance for providers, effective 11 March 2021. In response to the pandemic, CQC has also published an Update on CQC's regulatory approach, at the same time opening a consultation on their future strategy. The consultation closed on 4 March 2021. There has been no indication from CQC when the new strategy will be launched, but Crucible will provide an update when the document is published.
Compulsory vaccinations for healthcare workers?
The controversial issue of compulsory vaccinations made headlines this week as the Health Secretary confirmed that the government is actively considering the possibility of mandatory vaccinations for the approximately 1.5 million workers in England's adult social care sector.
Barchester Healthcare, which runs 240 care facilities in the UK, recently announced a new policy that all staff are expected to have been vaccinated by 23 April 2021, unless medically exempt. Employees retain a right to refuse. Barchester had previously announced that it would not hire new staff if they had not had the vaccine for non-medical reasons.
Care UK, which runs 120 homes, has reportedly introduced a "no jab, no job" policy for new employees. Further consideration of the reports however indicate that vaccination will be "expected", falling short of a mandatory requirement. Other care providers have taken a similar stance on vaccination.
Care homes have a statutory duty, under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 12, to ensure the safe care and treatment of their residents, including requirements for infection control. Providers must do "all that is reasonably practicable to mitigate risks". With the sector having been so tragically effected by the pandemic, the desire to ensure vaccination among staff is understandable.
There is currently no legal basis for discriminating against workers on the grounds of their vaccination status. Staff who are denied work for refusing a vaccination because of a protected characteristic under the Equality Act 2010, such as disability, pregnancy or religious/philosophical belief, could have grounds for potential discrimination claims against employers. Government ministers, including the vaccines minister, have previously conceded that mandating vaccination, including vaccine passports, are “discriminatory”. The issue raises a plethora of ethic and legal impediments, which ultimately mean compulsory vaccination is unlikely to be given legal footing.
GMC v Richard Freeman
On 19 March 2021, a former British Cycling and Team Sky doctor, Richard Freeman, was struck off the Medical Register after being found, among other charges, to have ordered Testogel, a banned substance, in 2011, a year before the London Olympics, "knowing or believing it was to be administered to an athlete" to improve their performance. Dr Freeman admitted 18 of 22 charges against him, including initially lying to try to cover up the order, and misleading a UK Anti-Doping investigation.
The high profile tribunal hearing lasted for more than two years. Dr Freeman's legal team has indicated that an appeal to the High Court was "highly likely". No doubt it will make for interesting reading later this year.
In other news
Laura Herbert has produced an article considering the merits of opposing Interim Order extension applications in the High Court.
Claire Robinson considers the long running case of GMC v Bramhall, returning soon to the High Court following a further appeal by the GMC.
Case Law Updates
Thomas Buxton, Claire Robinson and Laura Bayley have prepared a series of case law updates:
Laura Bayley.
