10 November 2014 Enforcement Policy Welsh Language Commissioner Market Chambers 5-7 St Mary St Cardiff CF10 1AT Dear Commissioner, Enforcement Policy consultation Thank you for the opportunity to respond to your proposals for an enforcement policy for the Welsh Language Standards. This is a joint response from the General Chiropractic Council (GCC), General Dental Council (GDC), General Medical Council (GMC), General Optical Council (GOC), General Osteopathic Council (GOsC), General Pharmaceutical Council (GPhC), Health and Care Professions Council (HCPC), the Nursing and Midwifery Council (NMC) and the Professional Standards Authority (PSA) - please see Annex A for organisational descriptors Questions 1 Is the purpose of the draft Enforcement Policy clear enough? We accept that the Background and Introduction sections of the policy are clear. 2. Do you agree with the regulation principles which are noted in the draft Enforcement Policy? We accept that the Better Regulation principles are applicable and appropriate for the enforcement policy. However, it would be helpful to receive clarification about the use of external parties to collect information or take action on the Commissioner’s behalf (3.12). 3. Do you agree with the method the draft Enforcement Policy envisages using to deal with complaints and alleged failures to comply with a standard? Whilst we agree with the majority of sections 4 and 5 of the policy we request clarification of the following: 4.1 – ‘The Commissioner’s focus in dealing with complaints will be on trying to obtain a satisfactory resolution for the complainant’ - does the resolution need to satisfy the Commissioner, or the complainant? As it could be the case that an outcome of an investigation is reasonable and proportionate, but may not necessarily ‘satisfy’ the complainant. 4.5 We agree that an organisation should have an opportunity to respond to a complaint, prior to investigation by the Commissioner and suggest that the term ‘encourages’ be strengthened to say ‘required’. 4.6 & 4.11 It is unclear whether these sections contradict one another with reference to the 12 month limitation. 4.16 We consider that the 10 working day turnaround for a response, explanation and solution will not be reasonable and proportionate in many cases and that a considered response would be more advantageous than a rushed one. We also request clarification with regard to the criteria for extension. 4. Are the criteria in the draft Enforcement Policy, which the Commissioner will follow when making enforcement decisions, clear enough? We consider the criteria for making enforcement decisions to be clear. 5. Do you agree with what the draft Enforcement Policy says about the way the Commissioner envisages using her enforcement and penal powers? Clarification would be helpful in the following areas: 7.4 & 7.5 It would be helpful to understand the timelines for the Commissioner’s response to representations made by organisations. 7.10 The term ‘is likely to fail’ implies the Commissioner has foresight into the outcome of the organisational response; it would be helpful to understand what this might mean in practice. 7.16 The Commissioner’s right to enter without notice – it would be helpful to understand why a Commissioner may be compelled to do this. Examples of when it would not be reasonable and proportionate to provide notice to the organisation 2 concerned would also be useful, we would suggest that notice should always be provided. It would also be helpful to note if this applies to premises that are not based in Wales. 7.18 It would be helpful to provide examples of acts that the Commissioner may deem contempt of court. 8.3 & 8.9 It would be helpful to understand why an organisation that has not failed to comply may be issued with recommendations/advice, and if this is the case, what is the status/implication of the recommendation or advice? This should be in line with the standard itself and not seek to go further than the initial requirement. 8.10 & 8.11 With regard to timelines for action plans, we request that these are reasonable and proportionate to the scale and resource of the organisation. 8.16 – 8.18 With regard to the publication of reports or statements, it would be helpful to receive clarity on the mechanisms the Commissioner intends to utilise for publication e.g. Commissioner’s website, media, and to what extent publication will be proportionate to the breach of the standard. It would also be useful to have the same information for publication by organisation, with particular regard to what is deemed reasonable and proportionate for UK-wide organisations. 9.4 (i) The term ‘restore’ implies the organisation has previously been compliant, ‘ensure’ may be an appropriate alternative. 9.10 We suggest that the policy should be explicit that the enforcement of a civil penalty should be the last resort, once all other options have been exhausted. It would also be helpful to clarify the circumstances in which a civil penalty would be enforced. 10.5 (a) ‘A failure that has placed an individual at a disadvantage’ This is potentially wide ranging and vague in description, examples may help explain how this could be deemed a serious failure and what would be a reasonable and proportionate response. 10.13 A blanket imposition of the maximum fine does not appear to meet the principles of better regulation discussed in the policy. In addition, it is questioned whether the imposition of a maximum penalty as an absolute is lawful. 11.4 It would be helpful to understand the reasoning behind the choice of the 5 years’ timeline with regard to the county court application. 11.8 We propose that the relevant person should also have the opportunity to respond to allegations in this instance. 13. Will there be a timescale for adding or removing data from the enforcement register? 3 6. Is the explanation of various terms and phrases used in the draft Enforcement Policy clear enough? General comments on terminology: There is scope for confusion about the use of the term ‘person’ and male pronouns to describe and refer to an organisation, this could imply an individual is responsible for the specific breach of the standard and for rectifying it; this is particularly pertinent to references to dishonesty and contempt of court. The use of the word ‘failure’ could imply that an organisation has knowingly neglected the standards; however, it could be the case that an organisation has unintentionally not met the standards expected – ‘has not complied/did not comply’ is proposed as an appropriate alternative. The word ‘suspicion’, along with its legal connotations, also implies a mistrust or guilt. Similar concerns are raised about the word ‘dishonest’. Are these terms appropriate for the policy? 7. Any additional comments. Thank you for meeting with us earlier this year to discuss the standards investigations and your proposals for enforcement. However, there remains ambiguity about what the Commissioner will determine to be reasonable and proportionate for UK-wide organisations, with respect to both implementation and enforcement of the standards. Due to the number of questions raised about the consultation, we request a follow up meeting to address these and will be in touch with your office to arrange. We hope our comments on the policy are helpful and look forward to discussing with you in the near future. Yours sincerely, Rachel Podolak Welsh Affairs Officer Email: [email protected] Telephone: 029 2049 4948 4 Annex A The General Medical Council The General Medical Council (GMC) is an independent organisation that helps to protect patients and improve medical education and practice across the UK. We decide which doctors are qualified to work here and we oversee UK medical education and training. We set the standards that doctors need to follow, and make sure that they continue to meet these standards throughout their careers. We take action when we believe a doctor may be putting the safety of patients, or the public’s confidence in doctors, at risk. Every patient should receive a high standard of care. Our role is to help achieve that by working closely with doctors, their employers and patients, to make sure that the trust patients have in their doctors is fully justified. Professional Standards Authority The Professional Standards Authority for Health and Social Care* promotes the health, safety and wellbeing of patients, service users and the public by raising standards of regulation and voluntary registration of people working in health and care. We are an independent body, accountable to the UK Parliament. We oversee the work of nine statutory bodies that regulate health professionals in the UK and social workers in England. We review the regulators’ performance and audit and scrutinise their decisions about whether people on their registers are fit to practise. We also set standards for organisations holding voluntary registers for people in unregulated health and care occupations and accredit those organisations that meet our standards. To encourage improvement we share good practice and knowledge, conduct research and introduce new ideas including our concept of right-touch regulation†. We monitor policy developments in the UK and internationally and provide advice * The Professional Standards Authority for Health and Social Care was previously known as the Council for Healthcare Regulatory Excellence † Professional Standards Authority. 2010. Right-touch regulation. Available at http://www.professionalstandards.org.uk/policy-and-research/right-touch-regulation 5 to governments and others on matters relating to people working in health and care. We also undertake some international commissions to extend our understanding of regulation and to promote safety in the mobility of the health and care workforce. We are committed to being independent, impartial, fair, accessible and consistent.