Regulation of Health Care Professionals Regulation of Social Care Professionals in England Northern Law Commission Ireland Scottish Law Commission in England Professionals Regulation of Social Care Law Commission NILC 18 (2014) Regulation of Healthcare Professionals Regulation of Healthcare LC 345 / SLC 237 Joint Report Law Com No 345 / Scot Law Com No 237 / NILC 18 (2014) 38723_Cover Pantone PMS199.indd 1 28/03/2014 17:57 Law Commission Scottish Law Commission Northern Ireland Law Commission (LAW COM No 345) (SCOT LAW COM No 237) (NILC 18 (2014)) REGULATION OF HEALTH CARE PROFESSIONALS REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty Laid before the Scottish Parliament by the Scottish Ministers Laid before the Northern Ireland Assembly by the Department of Justice April 2014 Cm 8839 SG/2014/26 © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence v.2. To view this licence visit www.nationalarchives.gov.uk/doc/open-government-licence/version/2/ or email [email protected] Where third party material has been identified, permission from the respective copyright holder must be sought. This publication is available at www.gov.uk/government/publications Print ISBN 9781474101837 Web ISBN 9781474101844 Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office ID 2634833 38723 04/14 Printed on paper containing 75% recycled fibre content minimum ii LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Northern Ireland Law Commission was set up under the Justice (Northern Ireland) Act 2002 (as amended by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010) to keep the law of Northern Ireland under review and to pursue its systematic development and reform. The Law Commissioners for England and Wales are: The Right Honourable Lord Justice Lloyd Jones, Chairman Professor Elizabeth Cooke David Hertzell Professor David Ormerod QC Nicholas Paines QC The Chief Executive of the Law Commission for England and Wales is Elaine Lorimer. The Law Commission is located at 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG. The Scottish Law Commissioners are: The Honourable Lord Pentland, Chairman Laura J Dunlop QC Patrick Layden QC, TD Professor Hector L MacQueen Dr Andrew J M Steven The Chief Executive of the Scottish Law Commission is Malcolm McMillan. The Scottish Law Commission is located at 140 Causewayside, Edinburgh EH9 1PR. The Northern Ireland Law Commissioner is: Dr Venkat Iyer The Chief Executive of the Northern Ireland Law Commission is Judena Goldring. The Northern Ireland Law Commission is located at Linum Chambers, 8th Floor, 2 Bedford Square, Bedford Street, Belfast, BT2 7ES. The terms of this report were agreed on 21 March 2014. The text of this report is available on the Law Commission’s website at http://lawcommission.justice.gov.uk/areas/Healthcare_professions.htm http://www.scotlawcom.gov.uk/ http://www.nilawcommission.gov.uk/ iii LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION REGULATION OF HEALTH CARE PROFESSIONALS REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND CONTENTS PART 1: INTRODUCTION 1 The remit of our review 2 Structure of the project 3 Issues for the project 5 Structure of the report 7 PART 2: THE STRUCTURE OF REFORM 9 A single statute 9 Consistency versus autonomy 11 Rule-making powers 13 Devolution 17 The Pharmaceutical Society of Northern Ireland 19 Section 60 of the Health Act 1999 21 The role of the Privy Council 23 Government regulation-making powers 25 Default powers 29 iv Parliamentary accountability 32 PART 3: THE GENERAL OBJECTIVES 35 PART 4: THE REGULATORY BODIES 42 Strategic role 42 Constitutions 44 Appointments 47 Definition of lay and registrant members 49 Concurrent membership 51 PART 5: REGISTERS AND REGISTRATION 54 Registers of regulated professionals 54 Student registers 58 Voluntary registers 60 Non-practising registers 63 Barring schemes 66 Types of registration 69 Requirements for registration 72 Processing registration applications 77 Publication and upkeep of the registers 79 Content of the registers 82 Registration appeals 87 Restoration to the register 89 PART 6: EDUCATION, CONDUCT AND PRACTICE 93 Overlapping responsibilities 93 Education 94 v Standards of conduct, performance and ethics 101 Continuing professional development 106 PART 7: IMPAIRED FITNESS TO PRACTISE 110 Other issues 117 PART 8: FITNESS TO PRACTISE INVESTIGATIONS 120 Preliminary procedures 120 Investigation procedures 129 Realistic prospect test 134 Disposal of cases 136 Mediation 141 Review of decisions 142 PART 9: FITNESS TO PRACTISE PANELS AND ADJUDICATION 146 Article 6 compliance 146 Separation of investigation and adjudication 148 Constitution and appointment of panels 152 Case management 158 The location of hearings 160 Rules of evidence 161 Standard of proof 163 Public hearings 164 Witnesses eligible for assistance 166 The overriding objective 169 Procedural matters 172 Final sanctions and other disposals 174 Review hearings 179 vi Appeals 182 PART 10: JOINT WORKING 184 Interfaces with other regulatory systems 184 Joint working 186 Duties to co-operate 188 PART 11: PREMISES AND BUSINESS REGULATION 192 Regulation in a commercial environment 192 Premises regulation 194 Regulation of bodies corporate 196 Consumer complaints 198 Extending business regulation 200 PART 12: PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE 202 General functions and other powers 202 Governance 207 Complaints 208 References to the higher courts 210 PART 13: OTHER ISSUES 213 Public consultation 213 General functions and powers 216 Status of the regulators 217 Statutory committees 218 Protected titles and functions of registrants 219 Power to reconsider decisions 222 Interim orders 223 vii Regulating the British Islands 228 Distance service provision 230 Midwifery 231 APPENDIX A: DRAFT REGULATION OF HEALTH AND SOCIAL CARE PROFESSIONS ETC. BILL 234 APPENDIX B: LIST OF RECOMMENDATIONS 436 viii LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION REGULATION OF HEALTH CARE PROFESSIONALS REGULATION OF SOCIAL CARE PROFESSIONALS IN ENGLAND To the Right Honourable Chris Grayling, MP, Lord Chancellor and Secretary of State for Justice, the Secretary of State for Scotland, the Scottish Ministers, and the Department of Justice in Northern Ireland PART 1 INTRODUCTION 1.1 The regulation of health and social care professionals impacts not only on the lives of registered and aspiring professionals; it also affects the lives of all those who use their services. There are nine regulatory bodies responsible for regulating 32 professions in the UK – consisting of approximately 1.44 million professionals.1. The primary purpose of professionals regulation (as we shall call it for brevity) is to ensure public safety. This is achieved not only by a process of weeding out those who fall short of professional standards but also by ensuring high standards of practice and behaviour and thereby reducing the need for disciplinary intervention. Professionals regulation is one element of a much broader system of ensuring patient and service user care. In broad terms, its focus is on the regulation of individual professionals rather than, for example, organisations and systems. 1.2 Given the importance of health and social care professionals regulation, it is a matter of some concern that its UK legal framework is fragmented, inconsistent 1 Professional Standards Authority, Annual Report and Accounts 2012-13 (2013) p 4. A list of the professions regulated by each regulator is set out in Schedule 1 to the draft Bill. 1 and poorly understood. The history of the legal framework can be traced back to the establishment of the General Medical Council in 1858. Since then it has grown piecemeal through numerous statutes and Orders in Council which have established and sometimes re-established regulatory bodies. Added to this structure is a vast array of orders, rules and regulations that have accumulated over the years. The resulting framework is neither systematic nor coherent and contains a wide range of inconsistencies and idiosyncrasies. Several examples of this can be seen in the area of fitness to practise. Some regulators have powers to establish systems of case management, while others do not. Some are able to screen allegations of impaired fitness to practise, while others must refer all complaints to an investigation committee. The test for referring a case to a fitness to practise panel and the powers to take action against practitioners whose fitness to practise is impaired also vary. 1.3 The current system is also cumbersome and expensive. It requires continuous Government input for its maintenance. Changes to the regulators’ rules and regulations – including relatively minor changes – must be developed, scrutinised and secured by the Government, and the process can take over two years. Furthermore, constraints on Government resources mean that only the most pressing matters are taken forward. 1.4 This project represents a major and unique opportunity to reform this legal framework and address these problems. The recommendations set