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Promoting Professionalism, Reforming Regulation – the Government's latest consultation response

23/07/2019
Five years since the Law Commission published its recommendations and Draft Bill for the regulation of health and social care professionals, the Department of Health and Social Care has published its response to the most recent consultation. While it contains some further details of how professional regulation will be reformed, including in response to the controversial Bawa-Garba case, it also suggests further consultations on other details.

Five years since the Law Commission published its recommendations and Draft Bill for the regulation of health and social care professionals, the Department of Health and Social Care has published its response to the most recent consultation.  While it contains some further details of how professional regulation will be reformed, including in response to the controversial Bawa-Garba case, it also suggests further consultations on other details.

The Law Commission's Draft Bill was first published in 2014, with the Government's response following in January 2015. In January 2017 the Government's consultation on its proposals following the Draft Bill closed, but it was only in July 2019 that the Government published its response to the consultation.  In the intervening years there have been a number of developments in healthcare professional regulation, most notably legislation creating Social Work England as the new regulator for social workers in England, the introduction of the GMC's powers to appeal decisions of its own Fitness to Practise Committee and the subsequent controversy of the Bawa-Garba case, where the GMC appealed to the High Court the Committee's decision to suspend Dr Bawa-Garba.

The latest consultation response promises further changes, but does not go into the detail many in the sector were expecting, with many of the responses being that the Government will consult (again) on new legislation in future.  However, one headline is undoubtedly that the GMC's power to appeal decisions of its Fitness to Practise Committee to the High Court, as it did in Bawa-Garba, is to be removed.  This power was only brought into force at the very end of 2015, and many regulators had been keeping a close eye on its use to see whether it could be rolled out more broadly.  The GMC used the power successfully on a number of occasions, but the uproar in the profession caused by the Bawa-Garba appeal appears to have brought it to an untimely end.  In June 2018 the Williams Review suggested that removing the GMC’s right of appeal “will help address the mistrust of the GMC amongst doctors and contribute to cultivating a culture of openness that is central to delivering improved patient safety" Jeremy Hunt subsequently commented that the overlapping function of the PSA gave him confidence that “there would be no gap in the law where regulatory action is being taken as a result of a serious criminal conviction” and therefore there can be little surprise in this being confirmed in the latest response.

What will make more difference in the long term is the intention is to create a core common ground between the regulators, but with increased flexibility for each regulator to create their own processes and rules.  This would reflect the new rules that have recently been the subject of consultation by Social Work England, the new regulator for social workers due to commence responsibilities on 2 December, where significant flexibility is given for processes to be set out in guidance.  Part of the intention behind increased flexibility is to encourage regulators to use forms of early resolution, such as consensual disposal and mediation, in an attempt to reduce the amount of time spent in arguably unnecessary fitness to practise hearings.  This is an approach that the Nursing and Midwifery Council has emphasised recently, with the aim to reduce the role of hearings and focus on local resolution and remediation of concerns.  A further change to the fitness to practise process will be including a duty for regulators to consider workforce implications when developing their policies and processes.  It is unclear what changes this will result in, or how it would be balanced against ensuring each registrant is fit to practise, but it appears to be in response to concerns about fewer professionals coming from the EU (and further afield) after Brexit and more widespread concerns about workforce depletion.

However, the Government has now decided that it will not proceed with its initial suggestion of introducing prohibition orders, as is done for teaching.  Rather, it intends to introduce automatic removal for those convicted of certain serious offences, again as is being introduced by Social Work England.

Finally, the Government has so far remained non-committal on its initial proposal of 'reconfiguring' the regulators to reduce the overall number of organisations.  The Health and Care Professions Council, which currently regulates 16 professions, was seen as a model for this (as are the CORU model in Ireland or APRA in Australia), although it should be noted that for wide-ranging reasons one of these professions is social workers in England, will be taken out of HCPC with responsibility moving to Social Work England.  The Government's position is now that, while it still considers that reducing the number of regulators would be beneficial, "more work is needed before bringing such a proposal forward."

That the Government has finally responded to the consultation is undoubtedly a step forward, and introducing more flexibility in processes will be warmly welcomed by the regulators.  However, five years since the Law Commission recommendations were released, there will be some frustration that the final details have still not been published.  Regulators and registrant bodies may wish to use this opportunity to consider how they would want to see this new flexibility used, and begin to codify their ideas.

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