Regulation of Health Care Professionals

Law Commission Scottish Law Commission Northern Ireland Law Commission Joint Consultation Paper LCCP 202 / SLCDP 153 / NILC 12 (2012) REGULATION OF HEALTH CARE PROFESSIONALS REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND A Joint Consultation Paper ii THE LAW COMMISSIONS: HOW WE CONSULT About the Commissions: The Law Commission and the Scottish Law Commission were set up by section 1 of the Law Commissions Act 1965. The Northern Ireland Law Commission was set up by section 50 of the Justice (Northern Ireland) Act 2002. Each Commission has the purpose of promoting reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is Elaine Lorimer. The Scottish Law Commissioners are: The Honourable Lord Drummond Young (Chairman), Laura J Dunlop QC, Patrick Layden QC TD, Professor Hector L MacQueen and Dr Andrew J M Steven. The Chief Executive is Malcolm McMillan. The Northern Ireland Law Commissioners are: The Honourable Mr Justice McCloskey (Chairman), Professor Sean Doran, Mr Neil Faris, Mr Robert Hunniford and Dr Venkat Iyer. The Chief Executive is Ms Judena Goldring. Topic: This consultation covers the regulation of health care professionals and the regulation of social care professionals in England. Geographical scope: England and Wales, Northern Ireland and Scotland. An impact assessment is available on our website. Duration of the consultation: 1 March to 31 May 2012. How to respond Send your responses either – By email to: [email protected] or By post to: Tim Spencer-Lane, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0267 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, where possible, you also sent them to us electronically (in any commonly used format). After the consultation: We plan to publish a final report with a draft Bill in 2014. It will be for Parliament to decide whether to change the law. Freedom of information: We will treat all responses as public documents. We may attribute comments and publish a list of respondents’ names. If you wish to submit a confidential response, it is important to read our Freedom of Information Statement on the next page. Availability: You can download this consultation paper and the other documents free of charge from our websites at: http://www.lawcom.gov.uk (See A–Z of projects > Regulation of Healthcare Professionals); http://www.nilawcommission.gov.uk (See Publications); and http://www.scotlawcom.gov.uk (See News column). iii CODE OF PRACTICE ON CONSULTATION The Law Commission is a signatory to the Government’s Code of Practice described below. THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible. Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Consultation Co-ordinator for this project is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Email: [email protected] Full details of the Government’s Code of Practice on Consultation are available on the BIS website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance. Freedom of Information statement Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes (such as the Freedom of Information Act 2000, the Freedom of Information (Scotland) Act 2002 and the Data Protection Act 1998 (DPA)). If you want information that you provide to be treated as confidential, please explain to us why you regard the information as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Law Commissions. The Law Commissions will process your personal data in accordance with the DPA and in most circumstances this will mean that your personal data will not be disclosed to third parties. iv LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION REGULATION OF HEALTH CARE PROFESSIONALS REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND CONTENTS Foreword by the Chairs of the Law Commissions x Foreword by the Lead Commissioners xi Table of abbreviations xii PART 1: INTRODUCTION 1 Background to the project 2 Historical context 3 Where are we now? 5 Structure of the consultation paper 9 Responding to this consultation paper 9 PART 2: THE STRUCTURE OF REFORM AND ACCOUNTABILITY 11 Our general approach to law reform 11 Rules and regulations 16 Public consultation 22 Parliamentary accountability 25 Publication requirements 29 Section 60 orders 31 The number of regulators and regulated professions 34 v The default powers of the Privy Council 36 Devolved responsibilities 38 Implementation issues 40 PART 3: MAIN DUTY AND GENERAL FUNCTIONS OF THE REGULATORS 42 The main duty 42 General and principal functions 48 PART 4: GOVERNANCE 52 Strategic role of the General Council 52 Status of the Councils 55 Constitution of the Councils 56 Council committees 63 Powers of delegation 66 PART 5: REGISTERS 68 The purpose of a register 68 Responsibility for maintaining the register 70 Types of registers 72 Types of registration 77 Requirements for registration 78 Processing of registration applications 83 Registration appeals 85 Publication and upkeep of the registers 86 Restoration to the register 89 Content of the registers 91 Protected titles and functions 95 vi PART 6: EDUCATION, CONDUCT AND PRACTICE 99 Overlapping responsibilities 99 Education 102 Guidance 111 Ongoing standards of practice 117 PART 7: FITNESS TO PRACTISE: IMPAIRMENT 121 The fact finding stage 121 The fitness to practise findings 126 Options for reform 127 Provisional view 132 PART 8: FITNESS TO PRACTISE: INVESTIGATION 134 Allegations 134 Initial consideration 139 Investigation 142 Threshold test 148 Disposal of cases 149 Mediation 153 Reviews 155 PART 9: FITNESS TO PRACTISE: ADJUDICATION 158 Article 6 compliance 158 The separation of investigation and adjudication 160 Case management 164 Composition of Panels 165 Conduct of hearings 169 Interim Orders 176 Final sanctions and other disposals 180 vii Review hearings 187 Should regulators be able to reconsider their decisions? 188 Appeals 189 PART 10: THE COUNCIL FOR HEALTHCARE REGULATORY EXCELLENCE 191 Role of the CHRE 191 Governance of the CHRE 193 Functions, powers and duties of the CHRE 196 Complaints about regulatory bodies 198 References to the higher courts 199 PART 11: BUSINESS REGULATION 203 Regulation in a commercial environment 203 Premises regulation 204 Register of bodies corporate 207 Consumer complaints 210 Extending business regulation 211 PART 12: OVERLAP ISSUES 213 Interfaces with other systems 213 Joint working 215 Duties to cooperate 218 PART 13: CROSS BORDER ISSUES 223 Registrants entering from within the EEA 223 Registrants entering from beyond the EEA 226 Regulating outside the UK 227 viii APPENDIX A: PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS 233 APPENDIX B: MAIN DUTIES OF THE REGULATORS 249 APPENDIX C: STATUTORY COMMITTEES 251 APPENDIX D: PROTECTED TITLES 253 APPENDIX E: PROTECTED FUNCTIONS 257 ix FOREWORD BY THE CHAIRS OF THE LAW COMMISSIONS We are delighted to present the first tripartite joint consultation paper, published under the names of each of the three Law Commissions in the UK. Both the Law Commission, for England and Wales, and the Scottish Law Commission were established by the Law Commissions Act 1965. Since the first joint project in 1968 (on exemption clauses in contracts), we have frequently undertaken joint projects. In each such project each stage has been approved by both sets of Commissioners. In Northern Ireland, the burden of making law reform proposals was shouldered by the Law Reform Advisory Committee. In 2007, the Northern Ireland Law Commission was established, following the recommendations of the Criminal Justice Review Group. The Commission was established under the Justice (Northern Ireland) Act 2002 (as amended by the Northern Ireland Act 1998 (Devolution of Police and Justice Functions) Order 2010). This project has been the first opportunity for the three Commissions to work together. We hope that there will be many more. The subject matter of this project covers matters dealt with both at a UK level and by the devolved institutions. In one respect it deals with the UK government’s responsibility for English social workers, an element which has to be treated formally as a distinct project.

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