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Reforming regulation - don't lose sight of the need to balance flexibility with accountability

A line-drawing illustration of different healthcare professions including dentist and doctor

The Government's consultation Regulating healthcare professionals, protecting the public has now closed. The deadline to respond was 16 June 2021.

We have now published our full response to the Government's consultation. You can read it here.

In addition to our concerns about proposals to introduce 'accepted outcomes' with no independent oversight, there are two other areas that give us cause for concern:

1. The plan to remove 'health' as a category in the fitness to practise process. We believe that, not only could this lead to registrants with health conditions being labelled as 'incompetent', it could also make it harder for regulators to restrict the practice of registrants who present a risk to prevent harm  to patients. The proposals, as they are currently set out in the consultation, also add an additional layer of complication for regulators, employers and the public by introducing a parallel process to deal with health cases. We think this is a recipe for confusion, inconsistency, and poor decision-making.  

2. The proposed changes to regulator rule-making. Though we agree that regulatory agility is important (we have seen the need for it during the pandemic), much depends on how this freedom is balanced with accountability to ensure that rules protect the public and don’t lead to unjustifiable inconsistencies in approach.

Grounds for action

We believe that the plan to remove 'health' as a ground for action will lead to lower levels of public protection; and more complexity from the perspective of the public, employers, and professionals.

We will be recommending that the legislation includes a standalone ground for action about health, and that the proposals for powers to take administrative action in these cases are removed.

This is so that health concerns can be, and are always, dealt with under the fitness to practise process. This would enable a proportionate, and less adversarial way of dealing with concerns about professionals with the necessary public protection safeguards.

Rulemaking

The Government wants to give regulators more freedom so they can decide how they use the duties and powers they will be given in law. Much of what is in law now will be moved to what are called regulator rules which outline how regulators operate. The checks that exist on rules at the moment would be removed and instead regulators would sign off their own rules. 

We worry that this could lead to processes that are faster and more convenient for regulators but do not protect the public as well as they should.

We will be calling for a role for the Professional Standards Authority to check that rule-making is being done properly, as previously recommended by the Law Commissions review of professional regulation in 2014.

Find out more about these two areas of concerns and the solutions we have put forward to help address them in our short report Three things to get right for public protection

These reforms are an opportunity to bring some coherence to a fragmented system. Let’s not waste it.

Find out more / useful resources:

  1. Read our short report First look at Government consultation on reforming regulation
  2. Read our report on the Three things to get right for public protection
  3. Frequently asked questions explaining more about fitness to practise, section 29 and the proposals put forward in the Government's consultation Regulating healthcare professionals, protecting the public
  4. The added value of our power to appeal which goes beyond the appeal process itself and brings extra benefits including creating case law, improving decision-making and making the fitness to practise process fairer and more transparent
  5. Read through some examples of our power to appeal in practice in these case studies
  6. Read independent research/advice we have commissioned to help inform our views on regulatory reform: Does consistency between regulators matter?, Patient and public perspectives on future fitness to practise processes and Cognitive biases in fitness to practise decision-making: from understanding to mitigation
  7. Find out more about our thoughts on fitness to practise reform