Unified Regulation: The Final Frontier

The Regulation of Health and Social Care Professions Bill (the “Bill”) was published by the Law Commission in the UK on 2 April 2014.[1]  Its purpose is to provide for a single legal framework to replace the current disparate pieces of legislation relating to health and social care regulators in the UK, as well as the Professional Standards Authority.

The new legal framework, rather than imposing a “one-size-fits-all approach”, seeks to ensure more consistency across the regulators in certain key areas such as constitution and membership, registration, education, conduct and fitness to practise adjudication, while at the same time recognising that the regulators need operational autonomy to adopt their own approach to regulation in light of their circumstances and resources.

The Bill seeks to harmonise the manner in which the following regulators approach certain issues:

1. General Chiropractic Council.
2. General Dental Council.
3. General Medical Council.
4. General Optical Council.
5. General Osteopathic Council.
6. General Pharmaceutical Council.
7. Health and Care Professions Council.
8. Nursing and Midwifery Council. [2]

In this article we consider some of the key provisions of the Bill relating to fitness to practise.

Fitness to Practise

The Bill seeks to introduce a common fitness to practise process across the regulators. We have reviewed the proposed fitness to practise regime under the following sub-headings:

Impaired fitness to practise

The Bill provides that an individual’s fitness to practise may be impaired by reason of one or more statutory grounds. Of particular note in this regard is the following:

1. Disgraceful misconduct. The ground of misconduct has been revised so as to demarcate the boundaries between deficient professional performance and misconduct. It is proposed that misconduct will now only relate to conduct of a morally culpable or disgraceful kind and no longer captures misconduct in the exercise of professional practice.
2. Deficient professional performance. This ground of complaint has been partially defined in the Bill for the first time and includes “an instance of negligence”, a breach of an undertaking agreed with the regulator, or a breach of an undertaking agreed with a fitness to practise panel.  The level of seriousness that the single instance of negligence must meet is not provided and the requirement of reference to a ‘fair sample’of a registrant’s work as stipulated in R (on the application of Calhaem) v The General Medical Council has not been included.[3]
3. Insufficient proficiency in the knowledge and use of the English language has been included.[4]

Making an allegation

In the interests of public safety, the Bill provides that regulators are entitled to treat any information which comes to their attention as a potential allegation even if made in a form other than that specified by the regulatory body. Therefore, regulators will not be prevented from considering a complaint simply on the basis that it does not adhere to formalities.

Preliminary Consideration

Under the Bill, regulators are required to refer allegations for preliminary consideration.[5] However, the regulator is given the flexibility to make its own rules specifying the procedure for preliminary consideration e.g. a formal screening panel, case examiners or the Registrar. The Bill specifically precludes members of fitness to practise hearing panels from considering complaints at this preliminary stage in order to establish a sharper divide between investigation and adjudication stages.

Referral of Complaint

The test for all referrals to fitness to practise is the ‘realistic prospect test.’  All cases must be referred if there is a realistic prospect of a finding of impairment and it is in the public interest to make the referral.

Where a matter is not referred to a fitness to practise hearing, the regulatory body can issue advice and warnings and agree undertakings or voluntary removal from the register with the registered professional. [6]

Fitness to Practise Hearing

The Bill provides that regulators may make rules regarding pre-hearing case management. This could potentially include directions relating to the exchange of documentation, notices to admit facts, documents and witness statements and the withdrawal of allegations.

A further interesting element to the Bill is that it provides that the standard of proof to be applied by fitness to practise panels when considering whether allegations have been proved as a matter of fact is the civil standard, which is on the balance of probabilities. It is proposed that most fitness to practise hearings will be in public[7] except in certain circumstances.

All fitness to practise panels will have the same powers to impose sanctions or otherwise dispose of cases.

Conclusion

If enacted, the Bill will replace a fragmented, inconsistent and expensive legal regime with a clear and simplified legal framework to enable the regulators to uphold their duty to protect the public. The Bill will support overall consistency across the regulators in the UK and provide for a better understanding of professional regulation by registrants and members of the public.

However, the Bill has once again highlighted a number of issues which are of equal interest to Irish regulators, including:

1. Should there be a joint approach by Irish health regulators to fitness to practise?
2. Should the definitions of misconduct and poor professional performance be re-considered in light of the UK approach?
3. Should fitness to practise panels be empowered to take certain action even if a complaint is not referred to Inquiry e.g. to advise or warn a registrant in relation to their behaviour?
4. Is there scope for Irish regulators to consider applying the civil standard of proof notwithstanding the decision in O’Laoire v Medical Council?
5. Should proficiency in the English language be a ground of complaint in this jurisdiction?

Ultimately the consideration for any regulator is what best serves the objective of protecting, promoting and maintaining the health, safety and well-being of the public.

For further information on this issue contact JP McDowell.

Remember that this article is for information purposes only and does not constitute legal advice. Case law is fact specific and readers should understand that similar outcomes cannot be assumed. Specific advice should always be taken in given situations.

[1] The draft Bill was prepared by the Law Commissions of England and Wales, Scotland and Northern Ireland.

[2]However, the Bill will allow for each existing regulatory body to continue to exist as a separate body corporate despite the repeal of any establishing legislation.

[3] R (on the application of Calhaem) v The General Medical Council [2007] EWHC 2006 (Admin)

[4] Please refer to the Bill for a complete list of the proposed grounds of complaint.

[5] The Bill provides for certain eligibility criteria for onward referral of complaints as well as imposing an obligation on preliminary screening panels to automatically refer certain types of allegations to fitness to practise panels e.g. where there is a serious criminal offence, albeit one that would not result in removal from the register under s.66 of the Bill. There is also a presumption in the Bill that a registrant will be removed from the register where they have been convicted of very serious criminal offences.

[6] The Bill provides that the regulatory body will have the power to review certain decisions e.g. a decision not to refer a matter to a fitness to practise panel.

[7] Unless the circumstances of the case outweigh the public interest in the hearing proceeding in public, or it relates to interim orders or health of the registrant.