What does the future hold for the regulation of healthcare professionals?
The government's recent response to the consultation it ran on reforming the regulation of healthcare professionals - 'Promoting Professionalism, Reforming Regulation' - marks a further step towards changes which are designed to make fitness to practise processes more flexible and efficient, including bringing the powers of the existing statutory regulators into closer alignment and giving them more freedom to decide for themselves how they operate.
Some of the more seismic proposals of reducing the number of regulators - or even having one overarching 'super regulator' - have been put on the back-burner for now. Nevertheless, some notable reforms will be carried forward.
We look at what's now being proposed and what we can expect next.
What changes are we likely to see?
With the current model of professional regulation often seen as overly bureaucratic and adversarial, the government has set out its latest plans for addressing this.
The changes the government plans to press ahead with initially include:
- Giving all statutory regulators consistent powers to deal with fitness to practise cases more flexibly/efficiently - Currently, the 9 UK statutory regulators of healthcare professionals - General Medical Council, Nursing & Midwifery Council, General Dental Council, General Optical Council, General Chiropractic Council, General Osteopathic Council, General Pharmaceutical Council, Pharmaceutical Council of Northern Ireland and the Health & Care Professions Council (which regulates 16 different professions) - do not have a consistent range of powers to manage fitness to practise issues. For example, whilst some regulators (e.g. GMC and NMC) have introduced case examiners who can, with the registrant's agreement, make decisions about measures needed at the end of the investigation stage without the need for a full hearing, others do not currently have the power to resolve cases without a hearing - e.g. in HCPC cases, if the investigating committee determines there is a case to answer, the matter will proceed to a final hearing without the opportunity for the HCPC or registrant to reach agreement on how the matter may be resolved satisfactorily beforehand. With 72% of those who responded to the consultation agreeing (and only 6% disagreeing) with the need to address this, the proposal is therefore to give all the regulatory bodies a single, broadly consistent set of powers which include the ability to resolve cases in a consensual, more proportionate way. We will, however, need to await the draft legislation for more 'flesh on the bones' detailing what this new set of powers would look like. The government's hope is that these reforms will then free up the regulators to focus resources on supporting healthcare professionals to meet required standards of practice.
- Introducing new power of automatic removal for specified very serious offences - In line with the powers granted to Social Work England (which will be the new regulator for social workers from December 2019), the government also plans to enable the regulators to automatically remove registrants who are convicted of very serious offences without the need for any fitness to practise process. These offences include murder, rape and various other sexual offences – but notably not gross negligence manslaughter.
- Enabling regulators to set their own operating procedures - Under the existing legislative framework, the way regulators carry out their day-to-day functions has to be agreed by Parliament, which can make operational change a slow and arduous process. The government has therefore committed in this consultation response to amending the legislation to allow the regulatory bodies to set out more of their own procedures in rules which can be made without going through a legislative process so they can be more responsive to change (although some areas - as yet unspecified - which require 'greater levels of oversight' will continue to require approval of Parliament).
- Mediation - The idea of using mediation as part of fitness to practise processes was popular amongst those who responded to the consultation. Although initially not keen on this idea, the government agrees that mediation could help resolve cases at an earlier stage where a full fitness to practise investigation is not required, and has now said it will introduce legislative changes to enable the regulatory bodies to include mediation as part of their fitness to practise procedures if they wish.
- Removing GMC's right of appeal to MPTS decisions - The government has reaffirmed the commitment it gave last year in line with the recommendations of the Williams Rapid Policy Review into Gross Negligence Manslaughter to remove the GMC's right to appeal decisions of the Medical Practitioners Tribunal Service to the High Court, which would bring the GMC in line with the other regulators. It also reiterates that the Professional Standards Authority should retain its right to refer fitness to practise decisions to the High Court where it believes the original decision is insufficient to protect the public.
- Removing power to require disclosure of reflective material - Whilst the GMC has already committed, in the wake of the Dr Bawa-Garba case, not to require its registrants to produce reflective material created as part of their learning and development, the government has said it will formalise this by modifying the GMC and GOC's powers to require information from registrants so as to exclude reflective material.
- Modernising governance structures - It is time, the government says, for regulators to move to a more modern governance structure. This will mean the councils of the regulatory bodies becoming boards, comprising executive and non-executive members, who will be appointed on the basis that they have the skills/expertise to ensure the regulator carries out its functions effectively. As part of this new-look governance approach, the government says it will also bolster current obligations around openness and transparency - e.g. requirements on regulators to update patients/family members on the progress of fitness to practise cases.
What else might change?
As well as committing to bringing forward legislative changes addressing the above areas, the consultation response identifies a number of proposals which will be subject to more consideration/consultation and which we may therefore see re-emerging further down the line.
- Fewer regulators - There are currently 9 statutory regulators of healthcare professionals, with wide variation in the number of professions and registrants they each regulate. Some argue that reducing the number of regulators could make the system easier for the public/patients/employers to navigate and lead to greater consistency of approach and outcomes, as well as costs savings linked with economies of scale. In answer to the question of whether there should be fewer regulators, a majority of consultation respondents (58%) agreed, whilst 31% did not. Respondents put forward a wide variety of options for reconfiguring the regulatory bodies, the most popular being to reduce the current set of regulatory bodies to 3 bodies covering doctors, nurses and all other professionals. The next most frequently suggested option was to extend the remit of the Health & Care Professions Council - e.g. amalgamating the smaller professions under HCPC or even HCPC becoming the single regulatory body for all professions. In response, the government has been non-committal, saying that whilst a case can be made for fewer regulatory bodies (e.g. to maximise economies of scale), more work is needed before bringing such a proposal forward for further consultation.
- Potential for regulators to work together more closely - Although the regulators already have a duty to cooperate, the government has said in this consultation response that it will explore whether this needs to be further strengthened to enable them to work even more closely together. Possible ideas for joint working suggested as part of the consultation included the creation of a shared online register/portal for all registered healthcare professionals, a single set of core standards for all healthcare professionals (to underpin profession-specific standards), a single adjudicator responsible for all fitness to practise decisions to make the system simpler/more consistent and the creation of a single organisation conducting back-office functions (e.g. HR, IT). Although a significant proportion (59%) of those who responded to the consultation agreed that these ideas could potentially deliver benefits, the government has not specifically committed to pushing any of these forward currently.
The next step will be for the government to produce draft legislation designed to bring about the changes it has committed to so far. That draft legislation will then be published for further consultation.
The government's consultation response is, however, noticeably silent on any specific timescale for this. Based on the pace of change up to now, we may be waiting a while longer before we see the proposed changes become a reality.
Meanwhile, other ideas such as potentially reducing the number of healthcare regulators, are currently on the back-burner. It is likely that these will be given more detailed consideration before being subject to a further round of consultation in future.
How we can help
Our team of experienced professional regulatory lawyers have a thorough understanding of how the wide range of professional regulators in the health and social care sector operate and we use this knowledge to provide sensible, pragmatic advice to obtain the best outcome in fitness to practise cases, including:
- Advice on prospects of success in defending an allegation;
- Attending interim hearings, which may involve suspension/conditions pending final outcome;
- Written responses to allegations, which can achieve successful resolution without a substantive hearing;
- Representation at fitness to practise hearings and subsequent reviews;
- Appeals against decisions of healthcare regulators.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.