A new dawn for health professional regulation
The Department of Health and Social Care (DHSC) has launched a consultation, Regulating healthcare professionals, protecting the public, which sets out the government’s proposals for reforming the legislative framework for the nine regulators of healthcare professionals (these include the General Medical Council, Nursing and Midwifery Council, General Dental Council and the Health and Care Professions Council).
In the government’s own words:
‘The UK model of regulation for healthcare professionals is rigid and complex and needs to change to better protect patients and service users, support our health services and to help the workforce meet future challenges’.
In broad terms, the thrust of the proposals has been universally welcomed by the regulators concerned as marking a watershed moment for the sector. As ever, though, the devil will be in the detail and it will be important for the regulators to continue to engage proactively with the government to ensure that they can achieve the best possible results for patients and the profession.
Reform of the regulation of healthcare professionals has been on the stocks since the Law Commission’s review of the legal framework for professional regulation in 2014, which gave rise to a draft Bill. This was followed in short order by a government consultation, Promoting Professionalism, reforming regulation, in 2017 and the government’s response published in 2019.
Whilst it has been recognised in many quarters that regulation of this sector is ripe for reform, it had not seemed to be a government priority; that is up until now. The COVID-19 pandemic has required the regulators to act quickly and respond in innovative ways to cope with rapidly changing circumstances and increased pressures. The pandemic has certainly focussed minds on the necessity for a responsive and agile healthcare workforce supported by a modern regulatory framework.
What are the proposals?
The consultation’s proposals are wide-ranging and cover the regulators’ key regulatory functions (registration, fitness to practise, and education and training) as well as suggesting changes to their governance and operating frameworks.
The overarching aims of the proposals are to:
- remove the outdated and prescriptive requirements of the existing legislation that governs how the regulators operate;
- standardise the statutory powers across all the regulators; and
- give regulators the flexibility and autonomy to make their own rules without having to seek legislative change.
Some of the proposals concern how the regulators work with each other and the wider healthcare sector, such as the suggestion of introducing a new duty on regulators to cooperate with other organisations working in the same space. The proposals also contain new powers for the regulators to delegate their functions to each other or to third parties, and a power to require their counterparts and external bodies to share data with them.
A large proportion of the proposals seek to strip away much of the existing legal framework, and underpinning rules, which govern the regulators’ investigatory processes and disciplinary procedures. In the context of ever-increasing fitness to practise caseloads, the proposals seek to increase the regulators’ ability to dispose of more cases early on by giving case examiners (or their equivalents) an enhanced decision-making role and allowing regulators to conclude cases through an accepted outcomes process (thereby removing the need to have a full hearing in such cases).
Other proposals that will no doubt be particularly welcome include a new power for the regulators to charge for services on a cost recovery basis and the ability to set their own fees in rules without parliamentary oversight.
What does this mean for regulators?
This consultation, and its contents, is undoubtedly positive news for the regulators. However, there is a long road to travel and it will be some time before the proposals become reality. The government intends to implement the changes through secondary legislation – starting with the General Medical Council this autumn (with the expectation that this first tranche of legislation will come into force in the spring of 2022). With this long lead-in time, it will be important for those regulators who are at the back of the queue to keep the pressure on the government to fulfil its promises.
The regulators need to be mindful that, with the greater freedom and flexibility that is being proffered, they are likely to be subject to increased levels of scrutiny in the future. The proposals make it clear that the regulators will pay a price for their new autonomy in the form of novel duties around proportionality and transparency, including enhanced requirements to consult on significant changes to their rules and standards. The profession and the public will certainly be watching closely as the regulators seek to flex their new-found muscles.
And further, and perhaps more fundamental, changes to the regulation of healthcare professionals seem to be waiting in the wings. The government notes, in its current consultation, that it is also commissioning an independent review of the number of regulators and a separate review of the professions that are currently regulated in the UK to consider whether statutory regulation remains appropriate. With the drive towards standardisation and the introduction of new powers of delegation, it would seem that the regulatory landscape is being primed for a shake-up which could see a reduction in the number of regulators and / or significant changes to their remit.
How BDB Pitmans can help
We have extensive experience of providing advice to regulatory bodies, specifically in the health and social care sector. We can advise on governance, regulatory functions and operational matters (including codes of conduct), registration and fitness to practice schemes, as well as education and training frameworks. If you would like us to assist you with any of the issues raised by the consultation, then please do get in touch.
Our services also include a specialist communications and reputation management team who can assist on all aspects of political communication, lobbying, consultation and public engagement.
For more information about our expertise, contact a member of our specialist public law team.