Explaining our draft reform guidance consultation

A. The Government plans to change the legislation for nine out of the 10 healthcare professional regulators we oversee, giving them a range of new powers and allowing them to operate in a very different way, including how they handle fitness to practise concerns (the process by which concerns about healthcare professionals are dealt with) as well as more flexibility around rulemaking (how regulators develop their operational processes). Find out more about the regulators we oversee here.

A. This first phase of reform involves changing the legislation for the General Medical Council (GMC) to allow them to regulate Physician and Anaesthesia Associates (PA/AAs).

The new model of regulation outlined in the Anaesthesia Associate and Physician Association Order would then be rolled out to all the other professional regulators under the PSA’s oversight, except for Social Work England.

A. Social Work England was established fairly recently (December 2019). This means that its governing legislation is more up-to-date than the other nine healthcare professional regulators we oversee. Social Work England is currently not included in this round of reform.

A. What some may not realise is that the draft AA/PA Order sets out a blueprint for reform. This means that the approach to regulation for AAs and PAs would ultimately be introduced for the other healthcare professional regulators covering large numbers of other professionals including nurses, doctors, and allied health professions - over 1.5 million people.

 A. As the oversight body for the healthcare professional regulators, the PSA is in a unique position to look across them and provide advice on best practice in the performance of their regulatory functions and to develop principles relating to good professional regulation. This is one of the functions set out under our legislation (The National Health Service Reform and Health Care Professions Act 2002).  

We have previously produced policy advice and guidance on key areas, including sexual boundaries and the professional duty of candour.

We are producing this guidance to help regulators make best use of their new powers post-reform. We have developed the guidance alongside the Anaesthesia Associate and Physician Associate Order (the AAPA Order). This will be the model for reforms for all the other healthcare professional regulators. We will review the guidance against future pieces of legislation developed for each regulator within the scope of the reforms and update to reflect further good practice that emerges as the reforms are implemented.  

A. We’ve chosen these areas because we think that the introduction of ‘accepted outcomes’ along with more flexible rulemaking powers are the most significant changes brought about by the reforms. These are the areas containing the greatest potential risks, but also the greatest opportunities to promote a robust and consistent approach. 

 A. The PSA will not have any formal role within the rulemaking or ‘accepted outcomes’ processes. Our guidance will therefore not ‘bind’ regulators, or have any official status.

We recognise that individual healthcare professional regulators are likely to develop their own guidance across their different regulatory functions. Our guidance is intended to support and guide them in doing so. We agree that regulators should have greater agility and flexibility in how they exercise their powers. We are not intending to limit this flexibility or suggest rigid uniformity in how regulators use their new powers post-reform, so long as any inconsistency does not undermine public protection.  

A. We expect the relationship between our guidance and our performance reviews to be much the same as with our other guidance or policy advice. Where relevant, we might ask a regulator for more information about their approach, including whether, and how, they had taken the guidance into account. 

A. The guidance is aimed at the healthcare professional regulators we oversee to help them develop their own advice, guidance and processes for their staff and decision makers.

However, our guidance should also be easy to read and understand for other audiences including registrants and members of the public who may wish to read and refer to it.  

A. No. It is true that the guidance is for the healthcare professional regulators we oversee, but the changes to regulator powers and approach will affect members of the public and healthcare professionals too. It is important for us to get as much feedback as possible from both individuals and organisations with an interest in patient safety and healthcare to make sure we get our guidance right.

A. The deadline is 5.00 pm on Monday, 15 April 2024.

A. You can find out everything you need to know, including the full consultation document as well as the two draft guidance documents and links through to the survey at www.professionalstandards.org.uk/psa-consultation

A. Accepted outcomes are a new way of dealing with concerns raised about healthcare professionals. Instead of a case being sent to a public hearing in front of a fitness to practise panel, case examiners, employed by the healthcare professional regulator, will carry out a detailed assessment of the case from the written evidence. The case examiner will decide:

• If the registrant is impaired?
• What, if any, action is needed to ensure that the registrant continues to be fit to practise in the future?

If the registrant agrees with the case examiner’s findings, and the sanction they propose, they can agree to resolve the case using an accepted outcome. This means there would be no need for a fitness to practise panel hearing. 

A. This new process is likely to reduce stress on both the registrant and complainant. It will also be less adversarial, quicker and more cost-effective.

A. In most cases yes, but it also means that neither the complainant nor registrant will have the opportunity to give their side of the story in person. It also means that the decision-maker(s) in the case won’t be able to ask questions of the registrant or witnesses to get a better understanding of what happened. We believe that there will be some situations and circumstances where a case will benefit from a panel hearing.

A. We think that there will continue to be cases where a panel hearing is needed, for example to ‘test’ the evidence of the registrant or witnesses. It is important that regulators continue to refer such cases to a panel, even if resolving it using an accepted outcome would be quicker and cheaper.  Public protection should always be front and centre. 

A. Using accepted outcomes will mean that neither the complainant nor the registrant will have to appear in front of a panel or be cross-examined. Complainants can be a patient/service user who has been on the receiving end of bad care or harm, a family member or a professional who has witnessed something wrong.

A. The draft guidance sets out different factors we think decision-makers at the regulators should take into account when deciding whether a fitness to practise case is decided by a case examiner or whether it would be better for public protection for it to be heard by a panel.

The guidance also contains factors for regulators to consider to ensure the accepted outcomes process is fair and transparent, and to promote effective decision-making. You can read our draft guidance on accepted outcomes here.

A. Rules set out the process the healthcare professional regulators have to follow to carry out their regulatory functions. This is the detailed information that sits below what is outlined in law.

For example, it could include:

• the process for adding or removing healthcare professionals from the register;
• the approach taken to investigate complaints about professionals; or
• how regulators go about quality assuring education and training courses. 
  

A. One major change will be to allow regulators to make and amend their own operational rules setting out how they regulate. At the moment, regulators have to get all rule changes approved through the Privy Council, a body made up of senior politicians who are current or former members of either the House of Commons or the House of Lords).

Also because there will be less detail in the legislation, there will be more rule. This means getting rules right will become even more important than it is under the current model.

A. Under the new model, reformed regulators will be able to change their rules without going through the Privy Council approval process. This should make it quicker and easier to update their regulatory processes when they need to. In addition, the checks that are currently carried out on rule changes by the Privy Council would be removed and instead the regulators would sign off their own rules.

A. We believe the changes to the rulemaking process are a positive step and will allow the healthcare professional regulators more flexibility. But we also want to encourage regulators to use their new rulemaking powers in a way that protects the public and leads to fair and effective processes. This is why we’ve produced our draft guidance – it lays out principles to guide what good rules should aim to do or be, and to support an effective rulemaking process.

It also encourages regulators to try to regulate in ways that are as similar to each other (consistent) as possible, avoiding differences in approach unless they are necessary. It provides advice to help regulators decide when and how they need to consult with stakeholders (including the public and professionals) on changes to their rules and processes.  You can read the draft rulemaking guidance here.

A. There are lots of reasons why consistency is important, however key amongst these is making sure that regulation is fairer, simpler and more coherent.