Health Service Focus

Reforming regulation

Tim Spencer-Lane, a lawyer at the Law Commission responsible for the review into regulation of health and social care professional regulation in the UK, gave a talk in Manchester about the draft Bill to create a single legal framework for all healthcare regulators. NHE’s David Stevenson was there, and later spoke to Nursing & Midwifery Council chief executive Jackie Smith.

On 2 April 2014, the Law Commission completed its review into the laws governing the regulation of healthcare professionals in the UK and, in England only, the regulation of social workers. It also submitted a draft Bill to the government – The Regulation of Health & Social Care Professionals etc Bill – which aims to create a single legal framework for all the regulators of health and social care professionals.

The review, commissioned by the coalition government in 2011, took three years to complete and Tim Spencer-Lane, the lawyer at the Law Commission responsible for carrying out the review, said that the proposed reforms aim to sweep away the “out-dated” and “inflexible” decision-making processes associated with current legislation.

Simplifying the framework

The draft Bill aims to simplify the existing framework and imposes more consistency across the regulators, such as the conduct of fitness to practise hearings.

The regulators that would be affected are the General Chiropractic Council; General Dental Council; General Medical Council; General Optical Council; General Osteopathic Council; General Pharmaceutical Council; Health and Care Professions Council; Nursing and Midwifery Council; and the Professional Standards Authority. However, the Law Commission concluded that the Pharmaceutical Society of Northern Ireland as currently constituted, with its representative element, should not be incorporated into the draft Bill.

The regulators would also be given powers to make or amend rules concerning registration and renewals, education, standards and continuing professional development – which will no longer be subject to approval by government or any Parliamentary procedure.

An end to ‘illusory’ Privy Council role

The current requirement for Privy Council approval of rules and rule changes has caused significant delays in delivering regulatory change and improvements, and prevented the regulators from ‘evolving’.

The Law Commission found that the role of the Privy Council “is illusory and should not be maintained in the new legal system”.

It does not accept the Privy Council ensures the “separation” and “independence” of the regulators from government. In reality, it says, the Department of Health and its lawyers undertake the vast majority of the functions formally allocated to the Privy Council. The Commission’s intention is to create a new legal framework where this relationship is made transparent and clearly delineated.

Spencer-Lane told an audience at Shoosmiths LLC in Manchester on 30 April: “Part of what we are trying to achieve with the new legislation is to allow regulators to be more forward-looking, allowing them to keep up with changes in health and social care practice and regulatory practice as well.

“The paper suggests that the regulators should have more powers to undertake regulation of health and social care professionals. In other words, the law shouldn’t tell the regulators how to regulate. They should be able to make those decisions because they are the experts, so this gives them a fair amount of discretion.”

‘Reasonably confident’

It seems as though the legislation, if it comes in, is unlikely to be passed during this Parliament, however.

Spencer-Lane explained: “Publicly, the government is still committed to introducing legislation at the earliest possible time, and a few months ago – mainly after Mid-Staffordshire – we were flavour of the month. We had the unusual position where we were boasted [about] by the PM as being the solution to ‘all the problems’ that were raised from the Francis Report, which meant our political profile was raised and we were almost guaranteed a place in the Queen’s Speech this year.

“However, in the ensuing time, events have overtaken that. So, as a result, I’m not entirely confident we are going to get this legislation at the moment, but I am reasonably confident that it will happen at some time. If it is not in the Queen’s Speech, the rumour is that it will go to pre-legislative scrutiny before a joint committee of both houses of Parliament, and it will be left for the new incoming government to decide whether it is to take the Bill forward.”

Under the new proposals, there is an implementation provision to allow some of the old legislation to run alongside the new statute while it is implemented to give regulators the chance to make some new rules and get used to the new framework.

And, although the regulators would be given legal rule-making powers that bypass Parliament, 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 does allow for government oversight on key areas where there is sufficient public interest and matters that give rise to questions about the allocation of public resources – for example, the extension of statutory regulation to new professions or extending revalidation. The government is also given default powers to intervene in cases of regulatory failure. 

Change is ‘desperately needed’

Following the publication of the draft Bill on 2 April a number of the regulators have come out and voiced their support for the proposals, none more so than the NMC. Speaking to NHE, Jackie Smith, chief executive and registrar of the NMC, said: “We are passionate about the Bill finding its way into the Queen’s Speech and becoming reality.

“The reason for this is because we desperately need changes to our legal framework.  David Cameron said in February last year that the NMC needs changes to its ‘outdated and inflexible’ legal framework because the cost of fitness to practise is so high. Unless we have changes, which enable us to regulate more effectively, the cost has a direct impact on the registration fee.”

She added that the Bill is terribly important as it enables health regulators to be much more flexible and agile. “This has to be positive,” Smith stated, “currently we are faced with a complicated, complex legal framework for all of us and it doesn’t necessarily deliver what the public want. So, the Bill is a great vehicle for us to make changes relatively quickly, which enables us to protect the public in an effective way.”

Seven of England’s eight healthcare regulators wrote to the Sunday Times at the end of March calling for cross-party support to pass the Bill.

They said: “This will be a once in a generation opportunity to bring long-awaited reform to ensure that the health professionals who treat us are properly trained, competent and up to date.”

The only regulator in England not to sign the letter was the Health & Care Professions Council (HCPC).

Spokeswoman Amy Morgan told NHE the HCPC welcomed the proposals, but  she said: “We felt that we did not need to be co-signatories to the Sunday Times letter because our legislation as it currently stands is more recent than others and, therefore, gives us the flexibility we need to deliver robust regulation. We are now looking forward to working with government and other regulators to take these recommendations forward.”

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