Health professional regulation in the UK is on the cusp of change. The legal framework underpinning the current system is fragmented and inconsistent. This reflects its piecemeal development, and has resulted in regulators sharing similar objectives, but not having equal powers to achieve these.
The latest government consultation (here – accepting responses until 16 June) seeks to address this by giving regulators broadly equivalent powers, which is intended to ensure a level of consistency. At the same time, the proposals would allow regulators to set and change many of their own processes and procedures by making rules. A consequence of this might be that, while regulators would have largely similar powers, the way they do things could vary significantly. This could enable each regulator to be more agile and flexible in their approach, but in certain instances it might lead to undesirable inconsistencies.
It is worth noting that these proposals are not the first attempt to introduce greater consistency across regulators. In 2012, the Law Commissions took a different approach and produced draft legislation that aimed to ensure consistency in key areas of public interest (here). As well as using legislation to impose consistency where it mattered most (for example, in fitness to practise adjudication), the Law Commissions envisioned that the Professional Standards Authority’s oversight would play a key role in encouraging consistency. This is not included in government’s current proposals.
Consistency as a principle of regulation
Consistency is a long-established principle of good regulation. Back in 1997, the Better Regulation Task Force (here) argued that for regulation to be consistent:
- rules and standards must be joined up and implemented fairly,
- regulators should be consistent with one another and work together in a joined-up way, and
- regulation should be predictable, to give stability and certainty to registrants.
But this still leaves unanswered questions: In which aspects of their work should regulators be consistent with one another? Are there good reasons why divergence might be desirable, and if so, what are they?
With this in mind, we commissioned Simon Christmas Ltd. to explore with patients, carers, the public and registrants to what extent, when and why they think consistency in health and care professional regulation is valuable. We also wanted to understand whether their views about consistency between regulators differ according to regulatory function, such as registration or fitness to practise.
This blog outlines some of the research findings. You can read the full research report here.
Consistency is not a straightforward topic to research. As explained in the research report, ‘consistent’ and ‘inconsistent’ are not just descriptive terms; they are often value-laden. Being consistent typically has positive connotations of reliability and stability. By contrast, it feels odd to say that we would like regulation to be more inconsistent. For this reason, the researchers avoided talk of consistency as much as possible, with the discussion focused around the less ambiguous and evaluative concepts of sameness and difference. Rather than asking participants if they thought consistency was valuable or not, they catalogued participants’ arguments about whether sameness or difference was appropriate with respect to various aspects of regulation.
Another methodological challenge related to exploring a complex and relatively abstract topic with participants whose level of awareness of professional practice and regulation was generally low. To address this, the researchers used illustrative case study examples of current differences in the regulation of different health and care professionals. Participants were then asked to consider what should be the same, what should be different, and their reasons for similarity or difference. Due to the restrictions of lockdown, the research was conducted through online focus groups with patients, carers and members of the public, as well as one-to-one interviews with registrants of different regulators.
Arguments for sameness
The research identified five kinds of argument made by participants for making regulation the same across different groups. These were typically based on ideas about underpinning similarities between professions. Which argument was relevant depended not on regulatory function, but on the perceived role of the regulator in that instance.
For example, where participants saw a regulator performing the role of an arbiter (for example, when making decisions about fitness to practise cases), arguments for sameness would rest on beliefs about fairness or what the correct decision should be. By contrast, where participants saw a regulator performing a service provider role (for example, when responding to concerns and providing updates to complainants), arguments for sameness related to adequacy or simplicity of the process.
These relationships between the regulators’ perceived roles and arguments for sameness are helpfully laid out diagrammatically with illustrative quotes in the main report.
The research also explored participants’ views about justifiable differences in the way that different professions are regulated. Five arguments for difference were identified, reflecting ways in which professions are different in some important respect, with many of these related to differences in the interactions between professionals and patients (such as the level of risk associated with practice; the involvement – or not - of a team, and so on).
Balancing sameness and difference in dialogue
Ultimately, the research found that for patients, the public, carers, and registrants, advocating for consistency between regulators rarely means asserting that regulators should operate identically. It instead involves balancing the value of different kinds of sameness – reflecting assumptions about regulators’ roles – with arguments for justifiable difference.
One theme that comes through from a number of the quotes in the report is that, as part of this balancing process, participants expect regulators to be in dialogue with one another. They expect regulators to work collaboratively to ensure that processes are aligned where this ensures fairness, or where this would make things simpler for patients or registrants (or for another of the reasons for sameness identified above). Returning to the government’s current consultation, the proposed duty to cooperate could go some way to cementing the ways of working that the public clearly deem valuable for achieving consistency. As our regulatory system changes – as it adapts to the reality of health and care professionals working in increasingly multi-disciplinary teams while the boundaries between professions blur – this seems an important finding to reflect further upon.