What next? The Regulation of Health & Social Care Professions etc Bill | Fieldfisher
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What next? The Regulation of Health & Social Care Professions etc Bill

Sarah Ellson
On 2 April 2014 the Law Commission, the Scottish Law Commission and the Northern Irish Law Commission published their tripartite report on the Regulation of Health and Social Care Professionals and On 2 April 2014 the Law Commission, the Scottish Law Commission and the Northern Irish Law Commission published their tripartite report on the Regulation of Health and Social Care Professionals and their long awaited draft Bill.  In this piece we highlight just two potentially contentious issues.  We also set out our understanding of what is expected to happen next.

English Language Requirements

One of the trickiest issues that the new Bill seeks to tackle is the issue of English language competency.  Pursuant to Recommendation 55, into the "categories" of impairment, which has traditionally included misconduct (now proposed to be "disgraceful misconduct"), deficient professional performance, convictions/cautions, adverse physical or mental health and determinations of other regulators, is added the new category of "insufficient knowledge of the English language".

Not only does this appear within the fitness to practice section of the Bill but it is also discussed in section 5 of the report looking at Registration requirements.  Clause 46 of the draft Bill gives the Government regulation-making powers to make provision for the treatment of certain applicants for registration in relation to proficiency in English. There is a suggestion that the Government might use such a power to require regulators to have a special part of their register in respect of certain applicants (those who must be registered under EU law) but where a Registrar is not satisfied that they have sufficient knowledge of English.  Regulations could allow the regulators to make rules in relation to proficiency in English.  The Law Commission's stated intention is that these language testing provisions would only apply to a small number of professionals where specific individual concerns have been raised prior to, or during, the registration process but seeks to ensure that the same scheme of language testing would be available to all the regulators (which is not currently the case).

The inclusion of this area of linguistic competence would seem to address calls by regulators and other stakeholders that this is a fundamental requirement for health and social care professionals.  Whilst we would expect many to welcome this new category others will no doubt seek to challenge its legitimacy and whether it is discriminatory (as has been the case with the existing language testing programmes).  Although intending it to have limited effect at the registration stage a "knowledge of English language" category of fitness to practise would appear to see the requirement applied universally to existing registrants regardless of country of residence or qualification, or nationality and it will be interesting to see whether proceedings are brought against individuals already registered and the nature of any challenges to such proceedings.

An Overriding Objective

Another potentially controversial issue is the attempt to "downgrade" the objectives of promoting and maintaining public confidence in the profession and declaring and upholding standards of conduct and behaviour.  Case law has long established these objectives, alongside protection of the public, as facets of the public interest.  The issue of the overriding objective(s) was apparently the area which drew the most consultation responses.  Recommendation 13 and Clauses 3 and 220 of the draft Bill set out the Law Commissions' conviction that the main objective of each regulator should be "to protect, promote and maintain the health, safety and well-being of the public" and that there is some form of hierarchy where this objective should trump the other limbs of the public interest which, with tighter wording, are given the status of general objectives.  The Report strongly urges regulators and their fitness to practise panels to "consider carefully regulatory interventions which do not take some colour from the need to protect the public".  If this approach makes it through to the final legislation we would anticipate a wide-ranging and interesting debate (and case law) as to which allegations meet this test and to what extent a professional's private life is beyond regulatory reach.

Where next?

So what happens next on this journey of reform?  As was always anticipated the Law Commissions' Recommendation 1 calls for the repeal of the existing Act and Orders that establish the current 9 regulatory bodies.  Annexed to their Report is a full and detailed draft bill.  In the final stages of drafting this document we understand the Law Commissions and the Department of Health ("DH") have been in close contact.  DH now needs to respond to the Bill and it is expected that they will take forward much of the draft.  However it is important to note that they are not obliged to adopt the Bill wholesale and where Government policy diverges from the Law Commissions' recommendations DH may seek to re-draft, delete or add to the Bill.

Initial assurances of a legislative slot in the final session of this Parliament seem to have faded away.  We understand that DH will need to bid to have this legislation included in the final Queen's speech and it is not clear whether DH will in fact seek to do this, or if a bid for inclusion would be successful as the coalition Government considers the priorities and sensitivities of this final session.  If the Bill is not included it has been suggested that some pre-legislative scrutiny will be undertaken which should smooth and quicken the passage of the Bill when it is afforded Parliamentary time (presumably in late 2015).

Those who have reviewed the draft Bill will have identified that there are a considerable number of areas which will require the making of Regulations.  We anticipate that the drafting of the statutory instruments which will be needed to put flesh of the bones of the Act will further delay implementation of change.  For the Pharmaceutical Society of Northern Ireland at least, further devolved consideration of the recommendations will also be required after the Act comes into force.

After Regulations have been made and devolved matters considered it will still be necessary for the individual Regulators to draw down from the legislation and develop their own Rules.  During the consultation DH suggested that a “test of readiness” could be applied before the regulators take on the Rule making powers. It is not known if DH might want to re-introduce this idea although the Law Commissions had concerns that "if some form of performance assessment was being proposed which restricted entry into the new system. This would raise the unattractive possibility of some regulators being prevented – perhaps for a considerable period – from entering into the new regime, forcing them to continue to operate under the old legislation, or perhaps even some other alternative scheme."

Rules will need to be consulted upon, transitional arrangements considered and only then will the much heralded changes take effect.

One of the stated intentions of the project was to develop a clear, modern and effective legal framework for health and social care professionals' regulation and greater consistency between the Regulators in this sector.  We can see much in this Report and Bill which will go a very long way towards achieving this and can envisage a time when patients and the public, and some 1.44+ million registrants will experience regulation as a more coherent, consistent and joined up process.  However we would not under-estimate the time it will take to get to that point and we predict that the day on which we can sweep the 9 separate Acts and Orders from our shelves (or delete them from our laptops) will be at least 5 years from now.

We will continue to provide our analysis of the Bill and its progression on this site and look forward to further discussion of the issues at our Annual Regulatory Conference on 2 July 2014.

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