The Council for Licensure, Enforcement and Regulation (CLEAR) brings together stakeholders from across the globe to discuss all things regulation for its annual educational conference. At the most recent conference, which took place virtually in September, our Director of Standards and Policy, Christine Braithwaite, and Policy Advisor, Natasha Wynne, presented on the topic of the value of consistency across the regulation of different professions in healthcare. The following blog provides an overview of the presentation.
Healthcare regulation: understanding the differences
In the UK there is a persistent concern that health and care professionals who work together in a team might be treated differently to each other by their various regulators. But it’s hard to tell if this is true because difference is hard to measure, and harder still to know what the impact of any differences might be.
Of the ten professional regulators we oversee, each was set up at a different time under different legislation, with their own rules, codes, processes, and procedures. Yet they all have the same four functions: setting standards for registrants, quality assuring their education and training, maintaining a public register, and dealing with complaints about professionals’ conduct and competence.
Why are there inconsistencies?
The different professionals all care for the public and many of them work together in teams every day. If you need to go to hospital you might be taken there in an ambulance by a paramedic. On arrival you’ll perhaps be assessed by a nurse, then seen by a doctor; possibly you’ll have anaesthetic administered by an operating department technician, be given medicine by a pharmacist, be assessed by a psychiatrist or referred to a dietician or a social worker.
If something goes badly wrong with your care, up to five regulators may be involved in considering your case. They will do so separately, assessing ‘their professional’ against their separate codes and standards, following separate processes. Now of course, the results of their consideration might quite legitimately be different. Perhaps some did their part correctly or even if they made a mistake, it was a single error and unlikely to be repeated. Or one might have taken swift action to put matters right and learn, whereas their colleague, who often made mistakes, was unconcerned and had no insight into their failings. However, in cases where the facts are less clear cut, there is no surefire way of knowing whether differences are justified or not.
What the inquiries have shown
The Francis Inquiry into failings at Mid Staffordshire Foundation Trust found that the regulatory system as a whole had failed to protect patients because it did not work together effectively. Sir Robert Francis also criticised the professional regulators (mostly of doctors and nurses) for their inconsistency and told them they should hear cases jointly to ensure their judgements were consistent. Since then, regulators have tried to collaborate more closely. But cases aren’t heard jointly and they are not assessed against common codes, meaning there remains the possibility of inconsistent outcomes.
The Professional Standards Authority: Our research
In 2018, we commissioned a research team at UCL to come up with a methodology to test consistency in complaints outcomes. This research drew out some of the controversies associated with consistency as a guiding principle. For example, though consistency typically implies fairness or justice, consistent outcomes do not necessarily equate to fairness because identical outcomes that have ignored relevant individual and legal factors are equally unjust.
Ultimately, the researchers concluded that ‘unjustifiable disparity’ probably provides a better guiding principle than consistency for research. It’s not always clear whether the differences between how the regulators operate, their processes and procedures are justified; or whether inconsistencies between the regulators affect the public, patients and professionals’ perceptions of regulation.
For example, if a doctor and an osteopath are suspended from practice, should this be noted on the register for the same amount of time? Should regulators of different professions have different policies about how they handle cases of drink-driving by registrants?
These are the sorts of questions we hoped to be able to interrogate through the research we commissioned earlier this year. This explored if, when and why the public, patients and professionals thought consistency between regulators was valuable; catalogued the reasons given for justifying sameness or difference in approach, and considered how these reasons might change when regulators are performing specific roles (you can read our previous blog on this research and its findings here).
What we learned about consistency from the research is that understanding whether things should be consistent between the regulators is a process. It’s a matter of balancing arguments for sameness against the arguments for difference. And what the research participants said again and again was that they expected to see evidence that regulators were talking to one another so they could actually justify the differences between them,or make things the same when there was a clear case to do so.
With this in mind, we are now working on developing an approach to help regulators tell when consistency matters and where difference is justified. This involves working through a series of three questions:
- What role are regulators playing in carrying out this process or activity?
- What arguments for sameness are most relevant?
- What moderating factors might justify different approaches?
We will discuss what we have developed so far with stakeholders to refine our approach. If you would like to know more about this work or share your views, please send us an email at firstname.lastname@example.org.