The health and care white paper and a vision for healthcare regulation

Today will see the publication of the white paper said to revolutionise the health and care systems in the UK. Despite the health service struggling in the midst of a pandemic, the Heath Secretary confirms that now is “absolutely the time” to reform the NHS, intending to “reduce bureaucracy, to sweep away the legal barriers to the NHS delivering and integrate the NHS with social care…”.

The proposed reform impacts upon a wide range of health and care services. However, some of the targeted areas for change, such as healthcare regulation, have been a topic of intense discussion for some time although a spate of inactivity since consultation led many to conclude there was a lack of political willpower to drive this through.

The white paper specifically addresses the planned reform in respect of the multiple faceted head of healthcare regulation.

The intended proposals are aligned with the broad approach behind the white paper which is to “strip away unnecessary legislative bureaucracy, empowering local leaders and services…”. It is said that “The UK model of professional regulation for healthcare professional 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”.

The intention is to make it easier to shake up the existing regulatory framework “to ensure that professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public, now and in the future”.

The focus of the reforms is to widen and provide additional powers to section 60 of the Health Act 1999, a mechanism by which changes can be made to the healthcare regulatory landscape through secondary legislation.

We understand the current proposals include:

  • A provision to enable removal of a profession from regulation through secondary legislation
  • The power to abolish an individual health and care professional regulator

Although there is no sweeping reform to create a super-regulator (which itself has been the subject of much debate), these provisions may be a step towards this but, perhaps, the greatest insight is that the number of regulators are deemed surplus to requirements. With the existence of nine healthcare regulatory bodies at present (ten, if you include the newly created Social Work England), it is unclear which might be in the government’s crosshairs but those which are deemed to “duplicate” functions or those that regulate professions that are subsequently removed from regulation are the most likely candidates.

  • The power to remove restrictions on the delegation of functions through legislation.

This provision will enable regulators to delegate specific functions to another body such as maintaining a professional register, determining standards of education and training, giving advice on standards of conduct, and administering procedures relating to misconduct or fitness to practise.

  • Extending the scope of professions which can be regulated using the powers under section 60.

Although the white paper specifically highlights that there are no plans “at this stage” to statutorily regulate senior NHS managers and leaders, there is specific reference to the 2019 Kark Review and the recommendation to put in place stronger measures to ensure that NHS senior managers have “the right skills, behaviours and competencies and to ensure those unsuitable to work in such roles are unable to do so”. It is therefore possible that these new powers could be used for a future broadening of regulation to extend to these currently unregulated groups, if deemed necessary.

The effect of the white paper is therefore fairly subtle. The proposals are likely to further the growing calls from some quarters to streamline professional regulation and better collaboration between regulators. However, there are no sweeping changes quite yet but it is clear that the chess pieces are being moved so that when a proper vision of the future of healthcare regulation has been finalised, the powers to implement that vision are already in place.

The reforms are said to build on the NHS’s Long Term Plan proposals and a bill will be laid in Parliament when parliamentary time allows to carry the proposals into law. The response to the consultation on busting bureaucracy included additional proposals for healthcare regulatory reform and it remains to be seen how and when these will be implemented.

Lee Biddle, Associate, BLM

Katrina Poole, Trainee Solicitor

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