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The Government responds to the Law Commission report on the Regulation of Health and Social Care

04/03/2015
The Government has published its response to the Law Commission, the Scottish Law Commission and Northern Ireland Law Commission's report on the Regulation of Health and Social Care. This blog The Government has published its response to the Law Commission, the Scottish Law Commission and Northern Ireland Law Commission's report on the Regulation of Health and Social Care. This blog considers some of the themes arising from the ongoing debate between the Law Commissions (as they will be jointly referred to) and the Government.

The thrust of the Law Commissions' report is that the legal framework for health and social care regulation is fragmented, inconsistent, poorly understood, cumbersome and expensive. Its 125 recommendations address discrepancies in the schemes and approach of the nine regulators, in particular their fitness to practise rules and procedures, their maintenance of registers and their powers and duties. The sum of the recommendations is for a more cohesive system across regulators.

Areas of agreement

For the most part, the Government agrees with the Law Commissions' proposals. It accepts that there should be a single statute that provides the legislative framework for all nine regulatory bodies and the Professional Standards Authority. The statute will overhaul the voluminous regulator-specific primary and secondary legislation currently in place. The Government agrees that all regulators should be bound by an over-arching 'public protection' objective (albeit it amends the Law Commissions' wording of the objective). It accepts that regulatory bodies should generally be able to decide how to perform their internal governance arrangements and that regulators should have a general power, although it slightly dilutes the Law Commissions' 'power to do anything' proposal to 'a general power regarding the scope of action regulatory bodies can take when performing their functions'.

In terms of specific processes and policies, the Government agrees for example that all regulators should be required to consult when issuing rules, standards or guidance and that registrant members should not form a majority on any regulatory body. On fitness to practise procedures, the Government agrees that regulators should be given a power to require disclosure of relevant information from registrants or any other person, should publish substantive fitness to practise decisions where a sanction has been imposed and has indicated that prohibition orders may have utility in the future. This will go some way to addressing the Law Commissions' concerns about discrepancies in regulators' threshold tests and powers.

The Government agrees with the Law Commissions that regulators must be required to keep a register and appoint a registrar, should have consistent and prescribed conditions for registration and should set standards of continuing professional development.

On some issues, such as joint working, the Government's reform proposals 'go further' than the Law Commission; indicating that regulators need not meet a 'likelihood of improvement test' to justify joint working.

Points of difference

Whilst the Government accepts the necessity of reform, there are a number of areas in which it does not fully accept the Law Commissions' recommendations. It has not (yet) accepted that regulators should be given powers to make legal rules which are not subject to approval by Government or Parliamentary procedure. The Government does not intend to review the legislation on protected titles and functions and, despite the Law Commissions proposing that regulation-making powers on matters within section 60 of the Health Act 1999 and default powers be given to the Government along with the power to appoint members of the regulatory bodies, the Government has not accepted that the role of the Privy Council in relation to health and social care regulation should be removed. It has not accepted that the Secretary of State should have the power to issue guidance or model fitness to practise rules. Amongst other procedural issues, the Government has not accepted the need for supplementary registers of professionals not intending to practise, does not agree with the introduction of a 'disgraceful misconduct' test for impairment, does not think there should be a Government regulation-making power to introduce mediation in fitness to practise procedures and disagrees with nuances of the panels' power to impose sanctions. It does not consider that systems of business and premises regulation are required for all regulatory bodies.

Further thought

The Government stated that it needs to consider further whether various reforms proposed by the Law Commissions should be included in a future Government Bill or in rules, including the circumstances in which decisions can be reached by a fitness to practise panel on the papers, rules for pre-hearing case management, rules on the admissibility of evidence, the requirement to apply the civil standard of proof in fitness to practise hearings, the general requirement for hearings to be held in public, the powers of fitness to practise panels (summons, the power to join cases, etc) and the regulators' power to review decisions.

The challenge moving forward

Throughout the Law Commissions' report and the Government's response, the dual objectives of autonomy and consistency are carefully considered. The tension between these two goals, which arguably pull regulation in opposite directions, is a key element in the charged debate on the future of health and social care regulation. For example, the Law Commission noted that during its consultation, some respondents saw the single statute as a means of providing regulators with greater flexibility whilst others hoped that it would provide an opportunity for harmonisation.

The requirement for consistency has been highlighted above in the context of the Law Commissions' concerns about difference in regulators' procedures and policies, which is thought to be detrimental to public understanding and confidence in regulators' roles. This is the impetus for reforms such as the single statute, uniform fitness to practise procedures and a harmonised approach to registers.

The need for regulators to be agile in responding to unique circumstances is equally high on the agenda, and the Law Commissions noted regulators' concerns that increased consistency could endanger or undermine regulators' autonomy. Increased consistency may also bind regulators to a potentially inappropriate one-size-fits-all approach, which may fail to take account of the different risks and pressures regulators face. The Francis report into the Mid-Staffordshire scandal, published in February 2013, highlighted the need for healthcare regulators to take a proactive approach where risk to public protection is identified and cooperate with other organisations to address risk and protect patients. The Government's response identifies reluctance amongst regulators to 'be the first to try new ways of working'. Recognition of the need to challenge this culture, and to encourage the development of efficient and effective regulation, may be the impetus behind the Law Commissions' proposal that regulators have the power to make legal rules which are not subject to Government approval (not yet accepted by the Government) and reforms which the Government has accepted such as a general power and discretion over internal governance.

The Government has 'committed to legislating on this important matter when parliamentary time allows', and the timeframe for reform therefore remains unclear. There have been some suggestions that the Department of Health may push for pre-legislative scrutiny sooner rather than later (and potentially as soon as summer 2015), which may result in reform being brought forward more quickly than previously anticipated. However, there has been no confirmation of this and it may be an equally safe bet that political appetite for reform will be lost until the next scandal brings a pressing political imperative. Overall, the significance of reform cannot be understated, impacting as it will on nine regulators with responsibility for over 1.4 million professionals. One of the major hurdles in the Government's further consideration of the points on which it is as yet undecided will be to achieve a balance between autonomy and consistency which is practicable for regulators and guarantees public protection and trust.

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