Enabling Excellence - the Government's proposals
for the future of health and social care regulation
On 16 February 2011 the Secretary of State for Health presented
a Command Paper to Parliament setting out the Government's
proposals for the future of health and social care regulation,
entitled Enabling Excellence: Autonomy and Accountability for
Healthcare Workers, Social Workers and Social Care Workers.
What was presented was both settled policy and potential policy.
Much of the settled policy will already be well known to those in
the health and social care regulatory sector through consultations
on and the publishing of the Health and Social Care Bill 2011. It
must be noted that the vast majority of what was presented only
concerns regulation in England.
This update sets out the key points of policy
presented to Parliament before going on to consider the future
impact of these proposals.
policy proposals
- Ensuring the sector takes steps to reduce the
cost of regulation, both to Government and the individual
professional, over the next three years. The Council for Healthcare
Regulatory Excellence (CHRE) will lead a sector-wide review of the
cost efficiency and effectiveness of each regulator within its
remit. This will require all regulators to review their governance
arrangements, with the CHRE reporting at the end of the year. Key
to this is the aim that employers and commissioners from across the
UK will contribute directly to the strategic leadership of the
regulators.
- The Law Commission to review the legislative
framework for professional regulation with a view to simplifying
it, ideally into one single Act of Parliament, and giving greater
autonomy to the regulatory bodies to decide how to meet their
statutory duties.
- Exploration into making regulatory bodies
partially or wholly liable for fines incurred by the UK government
for non-compliance with EU law where they have failed to undertake
their function as 'competent authorities'.
- The CHRE will provide advice about commencing
section 28 of the National Health and Service Reform and Healthcare
Professions Act 2002 and in doing so consult with the regulators.
The aim is to provide the CHRE with the power to investigate any
complaints made to it about the way in which a regulatory body has
exercised any if its functions, but it will be restricted to
administrative and policy matters rather than 'valid' decisions of
regulators.
- The Appointments Commission will be
abolished. The CHRE and the Privy Council will become responsible
for appointments to regulatory bodies, in the medium term.
Appointments to the CHRE will be made by the Privy Council along
with Ministers from Devolved Administrations.
- A system of assured voluntary registration
will be developed for professionals and occupational groups which
are currently not subject to statutory professional regulation.
Only where there is a compelling case on the basis of a public
safety risk will statutory regulation be extended to new groups;
the presumption will be in favour of assured voluntary
registration. The CHRE will be the national accrediting body for
these registers. Removal from such registers by the regulators
should be proportionate to their voluntary nature – an example
given is that removal should be dealt with administratively but
with an internal appeal hearing option available.
- In a derogation to European Directive
2004/24/EC making illegal the supply of unlicensed manufactured
herbal medicines, herbal medicine practitioners will be registered
with the Health Professions Council. It is made clear that the sole
purpose of this registration is to focus on minimising risk to the
public.
- Where there is evidence from the regulators
that there is significant added value in terms of increased safety
or quality of care for service users then the Government will
support revalidation. However, responsibility for ensuring
continued high quality care will remain with employers, providers
and commissioners of services, the teams who assess and provide
care and with individual professionals. For doctors, a key role in
this will be taken by 'Responsible Officers'.
- Given that PCTs will be abolished, the
Government will be reviewing how a system may be operated by the
NHS Commissioning Board in conjunction with the regulators to check
the language knowledge and professional skills of European Economic
Area migrant professionals working in the UK.
- Requirements for registrants to hold
professional insurance/indemnity cover should be consistent across
health regulation. Employees will not be required to obtain
personal cover themselves if already covered by separate corporate
or employer cover.
- The Government will continue with its policy
to abolish the General Social Care Council and extend the role of
the Health Professions Council to have responsibility for social
workers in England (Scotland, Wales and Northern Ireland will
regulate social workers through other bodies). It will be renamed
the 'Health and Care Professions Council'.
- Supervisory responsibility for both those
regulatory functions will be vested in the CHRE, which will be
renamed the 'Professional Standards Authority for Health and Social
Care' to reflect the expansion in its role. It will be funded by a
compulsory levy on the health professions regulators.
- Home care workers and adult social care
providers will not be the subject of statutory regulation. Instead
a system of voluntary registration will apply.
- It is confirmed that proposals to set up the
Office of the Health Professions Adjudicator will be
abandoned.
commentary
There can be little doubt that one of the main driving forces
behind these policies is a desire to cut the cost of regulation.
The Government is seeking to achieve this in two ways: firstly, by
dramatically reducing the spread of further statutory regulation
and making the responsibility for upholding professional standards
become focussed at a much more local level. Secondly, by requiring
the regulators themselves to make cost savings at an organisational
level, be it by a change in internal governance and structure or by
the merging of some regulators into higher volume organisations. It
is interesting to note that a consequence of the apparent
motivation behind these reforms is that the impact on those
regulators whose registrants are mainly self-employed and operating
in the private sphere may well prove to be markedly different from
the impact on regulators who primarily deal with employed
registrants. The Government argues that there is no benefit in
having regulators funded by their registrants where those same
individuals are being paid by the state in the first place. It has
said that it does not expect professional registration fees to rise
above their present levels. For regulators such as the General
Chiropractic Council, the General Osteopathic Council and, to a
lesser extent, the General Dental Council, the vigour with which
the Government will seek to reduce their operating costs may well
be less intense than for other regulators.
One of the areas which will prove to be of
greatest interest in due course will be the development and use of
CHRE-approved voluntary registers. It is clear that these registers
will be held by what is deemed the most appropriate of the present
regulatory bodies. However, it remains to be seen in practice how
far such registers will develop because of the budgetary
constraints. How much will regulators be allowed to charge for
membership of these registers? Will the effort in creating them and
registering potentially large numbers of applicants over a
relatively short period of time be sufficiently cost-effective to
be worthwhile? Assuming such registers do come to fruition the next
issue which is unclear is the impact of the Government's view of
the less robust way in which fitness to practise issues should be
addressed than they would be if the individual was subject to
statutory regulation. What impact would this have on the ability of
a regulator to uphold the reputation of the professions it guards?
Will the public feel sufficiently assured of the abilities and
trustworthiness of individuals on voluntary registers if fitness to
practise issues are only ever dealt with at an administrative
level? This will all remain to be seen.
The one area where there is an extension of
statutory regulation is into the field of practitioners of herbal
medicine where practitioners will have to register with the new
Health and Care Professions Council. However, it is of note that
the Government sees regulation of herbalists as being purely
focused on minimising risk to the public. Presumably, therefore,
the Government does not see herbalists as amounting to a
'profession', or part of a wider set of professions, which has a
standing in the public's eyes which needs protection or for which
validation and training needs to be provided.
The Government has fully committed itself to
working swiftly toward a far lighter-touch approach to professional
regulation. The pressures on the regulators to become leaner and
more efficient, particularly in their fitness to practise function,
are going to become ever greater. If the emphasis on dealing with
fitness to practise issues truly does shift to a more local level
then it may well be that the costs of administering the fitness to
practise function of the regulators decreases substantially.
Whether such a change will ultimately be of benefit to the public
and practitioners, or whether it will instead compromise
professional standards and public protection in order to save
costs, is not yet something which it is possible to predict.
