Proposed Changes to Fitness to Practise: The Regulated Professions (Health and Social Care) (Amendment) Bill 2019

Earlier this year, the Government published the Regulated Professions (Health and Social Care) (Amendment) Bill 2019. The Bill includes a number of proposed reforms of the existing legislation governing healthcare regulation in Ireland in a number of key areas. For the purposes of this update, we have focussed on the changes that relate to the area of discipline/fitness to practise. Who will the Bill affect? The Bill amends the legislation governing the regulation of medical practitioners, nurses &midwives, pharmacists, dentists, occupational therapists, social workers, speech and language therapists and a number of other healthcare professionals. The relevant regulatory bodies to which the Bill applies are as follows:

• the Medical Council;
• the Dental Council;
• the Pharmaceutical Society of Ireland (PSI);
• the Nursing and Midwifery Board of Ireland (NMBI); and
• CORU

What Changes will be made to disciplinary/fitness to practise processes?

1. Investigation of Complaints (Medical Practitioners & Nurses & Midwives Only)

The Bill provides for a change to the process by which complaints are investigated by both the Medical Council and the NMBI. It provides for the CEO of the relevant regulatory body to take over responsibility from the Preliminary Proceedings Committee for the processing and investigation of complaints against a medical practitioner or a nurse/midwife.  The CEO will appoint an Authorised Officer, who will investigate the complaint and ultimately prepare a report on the complaint. Authorised officers will have significant investigatory powers, including the power to compel the production of information and records. The decision as to whether to refer a complaint forward for further action (i.e. to Inquiry)                        will remain the responsibility of the Preliminary Proceedings Committee.

2. Early Disposal through Undertakings and Consents (Medical Practitioners & Nurses and Midwives Only)

The Bill empowers the Preliminary Proceedings Committees of the Medical Council and NMBI to request undertakings from registrants, which would dispose of complaints against those registrants at an early stage. The types of undertakings that can be requested under the Bill are as follows:

• Not to repeat the conduct;
• To be referred to a professional competence scheme (medical practitioners);
• To demonstrate relevant competencies (for nurses and midwives);
• To consent to undergo medical treatment;
• To consent to being censured; and
• To take certain steps identified by the Board, which may include educational course or training or gaining clinical practical experience (for nurses and midwives)

At present, undertakings can only be requested by Committees of Inquiry. It is important to note that this provision in the Bill only relates to the Medical Council and the NMBI. The Bill does not include a similar proposal in respect of CORU, the PSI and the Dental Council.

3. Appeal of Minor Sanctions

At present, a healthcare professional who is the subject of a minor sanction, for example, an admonishment or censure, imposed by its relevant regulatory body, is not entitled to appeal this to the High Court. Equally, regulatory bodies are not required to make an application to the High Court for confirmation of the imposition of a minor sanction. The Bill provides that all sanctions must be approved by the High Court. This will require the five affected regulatory bodies to make a formal application to the High Court in each case where a minor sanction is imposed. Registrants who are the subject of such a sanction will be entitled to appeal the sanction to the High Court, before a confirmation application is brought by the regulator. It is important to note that under the Bill sanctions which are imposed on foot of an undertaking (such as admonishment or censure) do not require a confirmation application to the High Court, and cannot be the subject of an appeal to the High Court.

4. Annual Declarations

Applicants for registration to all five of the regulatory bodies will have to make a declaration when first applying for registration, and then on each application for continued registration, which discloses the existence of any proceedings against them which might result in their being restricted or prohibited from practising the profession for which they are applying to be registered or from any other health and social care profession, or which might result in conviction. They are also required to disclose any convictions or sanctions imposed on their practice, by any health or social care regulatory body, either in Ireland or in another jurisdiction.

5. Additional Grounds for Complaints

The Bill provides for an additional ground of complaint, where a registrant has been prohibited or restricted from providing a type of health or social care in Ireland or in another jurisdiction

6. Admissibility of Evidence

Another important amendment provided for is that the Bill allows regulatory bodies to use certain documentary evidence on sanctions or convictions imposed in other jurisdictions in the context of disciplinary proceedings in Ireland, as proof of the facts stated in the documents. Relevant documents that can be relied upon include:

• Transcripts;
• Reports; and
• Statements in writing detailing sanctions imposed.

7. Publication of Information (Medical Practitioners & Nurses and Midwives Only)

In respect of the NMBI and the Medical Council only, the Bill provides that an Inquiry Committee may make an order that certain information regarding a hearing may not be published, or that certain information may be disclosed in an anonymised fashion. The Bill also makes it an offence to publish information in contravention of such an order made by a Committee.

8. Publication of Sanctions

The current position in respect of the publication of sanctions, in broad terms, is that regulatory bodies are required to give public notice of sanctions imposed, where it considers it in the public interest to do so. The Bill alters this position significantly. It provides that all sanctions imposed by the five regulatory bodies must be published. Sanctions imposed by regulatory bodies in other jurisdictions will be published, only if it is in the public interest to do so. Currently, regulatory bodies are required to notify the Minister for Health of all sanctions imposed. The Bill proposes to remove this requirement.

9. Power to Request Information from other Regulatory Bodies

The Bill provides that the five regulatory bodies will have a statutory entitlement to request information in relation to a “material matter” from other regulatory bodies in Ireland or in another jurisdiction. “Material matter” is defined in the Bill as information relating to: (a) The imposition of conditions on registration; (b) The suspension, withdrawal or removal of any registration; (c) The refusal to grant registration; (d) Conviction for a serious crime. The Bill also provides a statutory entitlement to request information about registrant’s criminal records from An Garda Siochána, and to request copies of certificates of conviction and relevant Court Orders/judgments. Conclusion The Bill is currently travelling through Dáil Éireann and is at Third Stage. It remains to be seen what amendments are ultimately included in the Bill, when it is enacted. In terms of fitness to practise, the Bill includes a number of provisions which, if enacted, are likely to impact on the processing of complaints by the five regulatory bodies to which the Bill relates, at all stages of the disciplinary process. A copy of the Bill can be accessed here.