Regulatory Reform – the wheels are in motion

On 24 March 2021 the Department of Health and Social Care published an open consultation “Regulating Health Care Professionals, Protecting the Public“.  The consultation is set to run until 16 June 2021.

The consultation has been keenly awaited and follows the Government response of July 2019 to a consultation run in 2017.  Whilst change has been delayed owing to issues such as Brexit and, of course, the pandemic, it seems we are edging closer to reform of professional regulation.

The consultation which can be viewed here proposes reform in relation to governance and operating frameworks of all healthcare regulators, education and training, registration and fitness to practise.

I focus here on summarising the proposals made in relation to fitness to practise which largely envisage consistency across the regulators. The changes proposed are wide ranging and will change regulatory processes across the board, if implemented.

The key proposals can be summarised as follows:

  • A three stage fitness to practise process – initial assessment, case examiner stage and fitness to practise panel stage.
  • Grounds for action being lack of competence and misconduct with a proposal that the separate grounds which currently exist in relation to English language skills and health concerns no longer applying albeit that regulators will still be able to investigate such matters as part of an investigation.
  • It is said that health concerns may be handled more sensitively by working with a registrant outside of the fitness to practice process.  This is a welcome suggestion given the significant impact on registrants of being subjected to a fitness to practise process which can serve only to exacerbate any pre-existing mental health issues in particular.
  • Introduction of a warning for registrants whose fitness to practise is found not to be impaired – these would be published for a period of two years, in line with existing GMC Rules.
  • Conditions, suspension or removal applying where fitness to practise is found to be impaired with the maximum period for conditions being 12 months.
  • An automatic removal order where a registrant is convicted of a listed offence, this would mean no initial assessment stage.
  • Suggestions are made in relation to notification and duty to keep complainants informed at key points during the fitness to practise process.  The extent of information to be provided is to be questioned, particularly in the event that a complainant is to be called as a witness at a hearing.  Measures, in my view, ought to be taken to ensure that any risk of prejudice to their evidence at a hearing is reduced.
  • Provision of non-compliance powers to all regulators.
  • Introduction of accepted outcomes such that where case examiners have decided that fitness to practise is impaired they can propose an outcome.  This proposal suggests that it will no longer be for case examiners to determine whether there is a realistic prospect of establishing impairment which, if introduced, will significantly impact on the extent to which comments at case examiner stage are made.
  • The suggestion is made that if the registrant does not respond within 28 days of a proposal by the case examiner to conclude with an accepted outcome, the proposed measure will come into force.  A registrant may have a right of appeal to the High Court or Court of Session in Scotland.  This risks increasing number of appeals referred to the High Court and it may be more appropriate for there to be a means by which reviews can be requested prior to an appeal being issued.
  • Interim measures processes are proposed in that case examiners will have powers to propose an interim measure and that such measure will come into force if it is agreed by the registrant.  This is clearly intended to reduce the number of referrals to interim orders/measures panels.
  • Appeals to the High Court are suggested in relation to interim measures, currently no right of appeal exists.
  • Long overdue is the proposal that regulators will not have the right to appeal a decision made by fitness to practise panel.  This was called for following the appeals in the Bawa Garba case and it is helpful to see a proposal that the legislation is to be amended.
  • It is proposed that the five year rule which currently exists in the GMC, preventing investigation of matters which date back over five years in particular circumstances, will be dispensed with. It is also now proposed that registrar review mechanisms will be introduced which appear not to be time limited.  It is currently the case that in the GMC registrar reviews can be undertaken a period of up to two years from a decision to conclude a case.

Reform of professional regulation has long been proposed.  The current proposals will however have far reaching consequences and will mean, in some regulatory forums, a complete change in the way that cases are managed  which could erode fairness to registrants. 

The proposals are largely reflective of fitness to practise rules in place at Social Work England and certainly, a degree of consistency is very much to be welcomed but this should neither be at the expense of fairness to a registrant nor remove safeguards that are currently in place. 

BLM will certainly be providing a response to the consultation, highlighting key concerns relating to fairness to registrants and ensuring that this remains paramount in any fundamental review of the regulatory landscape.

It remains to be seen how far the proposals will be accepted or how long it will take for regulatory reform to occur.  We will publish updates and further information as the proposals gather momentum.

We are more than happy to discuss any issues or concerns that arise.

Clare Chapman, Partner, BLM

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