Evaluation of feasibility of prohibition order schemes for unregulated health and care workers in the UK

Introduction

This paper sets out our advice to the Secretary of State for Health, under section 26A of the National Health Service Reform and Health Care Professions Act 2002. It provides an initial evaluation of the feasibility and potential benefits and limitations of prohibition order schemes for unregulated health and care workers, as requested in the commissioning letter (see Annex A). The letter stressed that it was ‘preliminary work focusing on evidence gathering’ in the form of an ‘introductory/contextual piece'.

Background

The letter explained that: ‘The Department of Health is currently exploring alternatives to statutory regulation in the UK for the parts of the health and social care workforce which (i) can be shown to present a risk to the public and (ii) cannot effectively be controlled by existing means. The policy intent is to provide a proportionate solution to the risks posed to patient safety that would prevent individuals who posed a risk from working in a similar role in the health and social care sectors. Accredited registers provide one alternative but are only available to groups who have formed a voluntary register and wish to be accredited.’

Examples of issues that prohibition orders may be expected to address include the difficulty employers have in knowing if a health or care worker is unsafe to practise, people coming off statutory registers and working as support staff, and people being dismissed by one employer and being able to find employment elsewhere.

We have not been asked to provide a view on the use of prohibition order schemes for a particular group or occupation. Therefore, our assessment of the feasibility and potential benefits and disadvantages of this regulatory tool is necessarily theoretical. We have not assessed their cost effectiveness in relation to other regulatory interventions. We are not in a position therefore to express a view on the desirability of introducing such a scheme in the absence of clarity about the context or people to which it might apply.

Our conclusions are intended for the attention of the Secretary of State for Health. However, we hope the research and analysis presented may be of interest to anyone considering the range of models of assurance that are available for the registration and regulation of health and social care workers, and who wishes to take a risk-based, proportionate approach to protecting the public.

The current system of professional regulation requires specified professions to be regulated by one of nine statutory regulators and to be listed on the register relevant to their profession. However, this does not include all of the health and care workforce. Practitioners in a number of other occupations are members of voluntary registers held by professional bodies. Twenty-three such registers are accredited by the Professional Standards Authority through the Accredited Registers Programme, established under the Health and Social Care Act (2012) and supported by UK Governments.

In addition, some groups are not regulated, are not members of accredited registers, and are not covered by a voluntary scheme. There has been debate around alternative methods of ensuring public protection for groups that are not covered by statutory regulation, primarily focused on those who also do not fall under an accredited register. For example, a quarter of NHS staff in England are ‘unregulated support workers’, the adult social care workforce in England is estimated at 1.5 million.

Prohibition order schemes, also referred to as 'barring schemes' or 'negative registers' have been referenced in various different contexts and for different occupations as an alternative approach. Sir Robert Francis, in his report on the Mid-Staffordshire inquiry, recommended that board-level leaders and managers within the NHS found not to be 'fit and proper' to hold such a position should effectively be placed on a barred list, preventing them from holding such a position in the future. In addition, the Health and Care Professions Council, in its 2014 accountability hearing with the Commons Health Committee, outlined its desire to obtain the powers to establish a negative registration scheme for social care workers.

Most recently, the Government has responded to the 2014 recommendation by the Law Commission that the Government should bring in powers to introduce barring schemes run by the regulators, with their view that prohibition orders, ‘could be a useful tool in areas of risk where the introduction of a full statutory regime would not be appropriate'.

Prohibition order schemes offer a potential alternative to statutory regulation as a means of preventing unfit individuals from working in certain occupations or carrying out certain activities. This advice reviews the information available about schemes currently in operation, and considers the feasibility, benefits and disadvantages of the introduction of a prohibition order scheme.

This advice is based on evidence and information from a number of sources including:

• Research into prohibition order schemes currently in operation in the UK and internationally, using publicly available information from sources including government and regulatory body websites
• Legal advice obtained by the Authority on the implications of key aspects of such a scheme
• A review of published stakeholder views on the subject.