Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
A review of the UK law relating to the regulation of health care professionals, and in England social workers too. Government accepted the large majority of our recommendations and has published a consultation on reforming regulation.
The primary purpose of professional regulation is to ensure public safety.
In the UK there are nine regulatory bodies responsible for regulating 32 – consisting of approximately 1.44 million professionals.
For healthcare professionals. regulation is one element of a much broader system of ensuring patient and service user care.
But the UK legal framework is fragmented, inconsistent, and poorly understood. There is a wide range of inconsistencies and idiosyncrasies with different regulators having different powers.
Not only that the current system is also cumbersome and expensive. Changes to the regulators’ rules and regulations – including relatively minor changes – must be developed, scrutinised and secured by the Government, and the process can take over two years.
The project originated in the form of a reference from the Department of Health. For more details see the White Paper Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers.
It was a tripartite project between the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission.
The issues considered by the review included:
- The registration and renewal of registration of professionals, student registers, registration appeals, protected titles and protected functions
- How the regulators oversee the quality of pre-registration and post-registration education and training
- How the regulators set standards for professional conduct and practice, and ensure ongoing practice standards (for example, through revalidation)
- The investigation and adjudication of fitness to practise case
- The role of the Professional Standards Authority
- The regulation of business premises and activities
- The governance arrangements of the regulators, including the size and composition of Councils
- The systems through which the regulators can be held to account, including the roles of the Privy Council, Government and Parliament, and duties to consult the public.
Our consultation paper was published on 1 March 2012. The paper contained 111 provisional proposals and 66 consultation questions.
During the public consultation period, we attended 44 events across the UK.
These events covered a wide audience, including patients, health and social care professionals, academics, professional bodies, the regulatory bodies, lawyers, service providers and representatives from charities and campaigning organisations.
At each of the consultation events, we received a wide range of views on various aspects of our proposals.
We received 192 written responses to the consultation paper, from a range of different individuals and organisations. The consultation analysis was published on 20 February 2013.
We published a report explaining and setting out our recommendations on 2 April 2014, together with a draft Bill.
The final report and draft Bill sets out a new single legal framework for the regulation of all health and social care professionals.
Key recommendations included:
- new powers for the regulators to make their own rules
- a new barring scheme to prevent certain professionals who have committed serious crimes from practising
- greater use of mediation in fitness to practice proceedings
- consistency across the regulators in the way that fitness to practise hearings are conducted
- enhanced duties on the regulators to consult the public and work collaboratively
- less Government interference in the rule making process and the appointment of the regulators/PSA boards
The reforms aim to sweep away the out-dated and inflexible decision-making processes associated with the current legislation. The new legal framework would introduce a clear and consistent legal framework which is needed to enable the regulators to uphold their duty to protect the public.
In many areas, the reforms consolidate and simplifies the existing legal framework.
The draft Bill also imposes greater consistency across the regulators in some areas where this is necessary in the public interest (such as the conduct of fitness to practise hearings).
Otherwise the regulators would be given greater autonomy to be able to deliver its functions in a way that is suited to the profession concerned.
This would include broad powers to make or amend rules concerning issues such as registration and renewals, and education, standards and continuing professional development – which are not subject to approval by Government or any Parliamentary procedure.
There would be a requirement on the regulators to consult when considering changes to their rules and a requirement that each regulator must provide information to the public and registrants about its work.
The procedures for making new rules would also be subject to oversight by the Professional Standards Authority.
The draft Bill also reforms the role of Government in professional regulation.
The draft Bill therefore targets Government oversight on key areas where there is sufficient public interest and matters that give rise to questions about the allocation of public resources.
Government is also given default powers to intervene in cases of regulatory failure.
On 29 January 2015, the Government accepted our recommendations that there should be:
- a single, overarching objective of public protection placed on each regulator
- wider powers and greater flexibility for the regulators to investigate and dispose of cases
- greater consistency in the conduct of fitness to practise panels
- greater separation between the regulators’ investigation and adjudication functions
- an overarching duty on the regulators to ensure the ongoing fitness to practice of registrants, and
- greater flexibility in how the regulators oversee medical schools and other forms of education.
The Government made the announcement by Written Ministerial Statement from Dr Daniel Poulter MP, Parliamentary Under Secretary of State for Health, and has committed to legislate, when parliamentary time allows, to implement these reforms.
Nicholas Paines QC, Law Commissioner for Public Law in England and Wales, said:
“The framework for promoting high standards of professional practice and behaviour, and holding health and social care professionals to account needs to be brought up to date and made fit for the future.
“We have recommended that the existing legislation be swept away and replaced with a coherent legal framework, within which each regulator should be driven by the single objective of public protection. We are delighted that the Government agrees with our position, has accepted the thrust of our recommendations and intends to legislate, when parliamentary time allows, to implement these important reforms.”
On 31 October 2017 the Government published a consultation paper which includes many of our recommendations and seeks to builds upon our report.
Area of law
Nicholas Paines KC