Our role to protect the public by improving the regulation of health and care professionals sometimes takes us beyond the UK. Overseas regulators and governments occasionally commission us to advise them, or to carry out reviews or investigations. But how do we approach our international work? What is it like to carry out a review in another country? And with so much happening in health and care regulation in the UK, why go halfway around the world to work with a regulator in a different field? Senior Scrutiny Officer Michael Humphreys explains more about this international aspect of our work.

What we were asked to do

Engineers and Geoscientists British Columbia (EGBC) asked us to review its legislation and governance. It wanted to know how its legal framework supported or hindered its effectiveness as a regulator. It also wanted us to assess its governance. We agreed to carry out the review, which would involve one member of staff from the Authority spending a week at EGBC’s offices in Burnaby, near Vancouver. With experience of working on our annual performance reviews of regulators in the UK, I volunteered.

Planning the review

The site visit is crucial, but it’s only one part of the review process. When we’re carrying out an international review, the work starts before we go anywhere. Before undertaking the visit, we worked with EGBC to:

• agree the standards we would use to assess its governance;
• identify evidence it would provide; and
• draw up a schedule for the week, including attending Council and committee meetings, and conducting interviews with staff and Council members. EGBC rearranged dates of some of its committee meetings so that they were taking place during the week of our visit.

EGBC staff arranged for us to have access to a secure area of its website. This meant we could review documents about its structure, policies and processes from our London office. There was also more general reading to understand EGBC’s legal framework and to get a feel for the environment in which it works. We provided a progress report based on our initial document review, so that we had some preliminary points for discussion identified ahead of the visit. After all that, I was ready to go.

On the ground

As one of our previous blogs notes, the world of professional healthcare regulation in the UK is complex. It has never seemed more complex to me than when I was asked, immediately on disembarking from a nine-and-a-half-hour flight, to explain the purpose of my visit to Canada.

It is a privilege to be able to travel to a beautiful and culturally diverse city like Vancouver. But there isn’t really time to see the sights. When we travel to conduct a review, we need to ensure that we get maximum value from our time on site. That makes a week’s visit intense. On top of a full programme of activity each day, there are notes to be made and research to be checked. You can’t expect to be able to remember everything when the time comes to write the report. Fortunately, a certain amount of jet lag makes it easy to find some quiet time in the very early morning to catch up on the day’s notes.

Support and engagement from the host organisation are indispensable too. Practically, we need staff to work with us so that we can get the information we need. But for the review to work well, it makes a big difference if the people we speak to are engaged with the project. The staff and Council members at EGBC were friendly, generous with their time and open to discussing and questioning what the organisation does and how. After a week that felt both very long and very short, I returned to the UK to work with colleagues to complete the review report.

What we found

Our review found that EGBC met seven of the nine governance standards against which we assessed it. It was already working towards the two standards it did not meet. We were satisfied that EGBC is committed to regulating the engineering and geoscience professions in the public interest. However, we considered that there is some way to go before its legal framework fully supports it in doing so.

We saw that EGBC is trying to get changes made to its legal framework, to help it protect the public. For example, unlike most other regulators of engineering and geoscience in Canada, EGBC does not currently have the ability to regulate organisations. We know that the environments professionals work in are a key influence on their behaviour. As well as seeking a change in the law to allow it to regulate organisations, EGBC has set up a voluntary scheme, where organisations sign up to a set of quality standards. The scheme gives EGBC a way to influence corporate behaviour to prevent harms from occurring, while it works towards a change in the law. We commended EGBC’s efforts to update its legal powers to protect the public.

Why do an international review?

We believe that our work with EGBC has benefits for us and them. We were able to give EGBC an independent assessment of its governance arrangements. And we made a number of recommendations to help EGBC regulate more effectively and transparently in the public interest.

Thinking about the challenges EGBC faces, and the things it is doing particularly well, helps us to test our ideas about right-touch regulation and to see how different issues arise in a variety of contexts. That allows us to look at them from a different perspective, while remaining focused on what is necessary to protect the public. We are always interested to learn from other organisations in the UK and internationally who share that commitment to regulating effectively in the public interest.

You can read our legislation and governance review of EGBC here. You can find out more about EGBC, including its response to our review, on its website here.

Related material

• Read the report Review of the legislation and governance for Engineers and Geoscientists in British Columbia
• Find out more about our other international work and the reports we have produced as a result
• Read more of the special reviews we have undertaken (UK and international)

This guest blog from Professor Deborah Bowman, the academic lead for the Authority's 2019 Academic Conference, introduces the question ‘what is it to be a good regulator?’

Nearly 20 years ago, I spoke to healthcare professionals for a research project about what it was to ‘be good’. It was a rich and stimulating experience. I will always be grateful to those men and women who spoke to me, often about difficult times in their careers, with honesty and thoughtfulness. I was struck by the way many of those to whom I spoke perceived their regulators. Even when individuals had not had direct contact with the regulator, emotion dominated responses and those emotions tended to be negative. It was common for interviewees to be critical, expressing feelings of fear, apprehension, hostility, irritation and a recurrent belief that their regulator had a poor understanding of what it was to practise clinically in a busy service. 

I reflected often on those reactions and wondered whether it was possible for people to respond differently. Were these situations that were inherently so high-stakes and highly-charged that it was impossible for regulators to be perceived as anything other than threatening and to become the subject of criticism? Were the ways in which a regulator might be considered to be ‘better’ than others because of its choices? What were the implications for those working in regulation of having roles that prompted such emotional responses and anxiety, both at the individual and collective professional level?

Some years later, I became Dean for Students at my University. As part of my remit, I had responsibility for standards, discipline and fitness to study and practise. As a specialist University where the majority of our programmes lead to professional registration, it was a significant and demanding part of my role. Although I anticipated that students would, inevitably, find encountering the Dean and being the subject of an investigation and possible hearing difficult, I was committed to ensuring that everyone in my team was ‘good’. I spent a lot of time thinking what that meant for me: there were practical aspects such as ensuring that the arrangements for hearings and the quality of the materials for panel members were in order. There were other aspects too: I tried to identify my expectations of the values and virtues that staff working in the team brought to their interactions with others and thought often about how different duties – to students, to colleagues, to prospective patients – were connected and sometimes in conflict.

'Being good' in the context of regulatory work

Each experience led me to wonder about the nature of ‘being good’ in the context of regulatory work and it has remained a preoccupation. My interest in the theme was further piqued when I met a Professor of Design from another University who talked to me about her work in drawing on design thinking and practices to develop ‘good’ regulation. It revealed yet further ways in which one might think about the question. I am aware that there will be many others.

So it was with great pleasure that I accepted the invitation from Douglas Bilton and colleagues at the Professional Standards Authority to act as the academic lead for its 2019 conference. Douglas was generous and open in his response to my suggestion that the question ‘what is it to be a good regulator?’ might be an interesting and stimulating prompt for conference participants and contributions. I hope it will encourage the diverse and thoughtful community of academics, policy makers, students, professionals and interested others who attend the conference to reflect on their own work and experiences. One of the most enjoyable and unique elements of the Authority’s research conference is the range of people who attend and present at the meeting. The emphasis on different perspectives, plurality and multi-disciplinary learning is invaluable. I am excited and intrigued to see how people might engage with the theme of ‘being good’ in regulation.

I am also interested in form and method as much as content. As well as the standard types of contributions such as presentations and papers, I would like to encourage potential attendees to think imaginatively and creatively about sessions. Interaction and sharing are priorities for the day and forms of contribution that foster dialogue are particularly welcome. It is difficult to offer examples without fearing that one might inadvertently be constraining the possibilities, but the sorts of activities that might be included in the programme alongside the conventional presentations are workshops, in conversation events, activities that draw on the arts in method and approach, visual materials other than power point and sessions that focus on narrative. There will, I know, be ideas, content and approaches that I cannot even imagine. Please do get in touch and share them with us. I’d be delighted to hear from you.

I hope to receive your thoughts, ideas, contributions and suggestions for the conference and to meet many of you in person at Cumberland Lodge next March.

Professor Deborah Bowman
Professor of Bioethics, Clinical Ethics and Medical Law
St George’s University of London

The Authority’s research conference is on 7 & 8 March 2019, at Cumberland Lodge, Windsor Great Park. For more information, please contact Douglas Bilton, Assistant Director of Standards and Policy, on douglas.bilton@professionalstandards.org.uk

 Related material

• Watch our highlights video from last year's conference which focused on fitness to practise or read about it in the spring issue of our e-newsletter.
• Find out more about previous academic conferences, including speakers' presentations
• Read key stats for research and policy 2017/18.

The UK’s public health challenges have been well documented by mainstream media. And while some headlines are invariably over-exaggerated, the underlying facts are a stark reminder that improvements must be made.

For real change to be made and sustained, it’s now acknowledged that support must come from many corners of the healthcare network. In this blog, we look at how the Accredited Registers programme can play a key role.

The UK's challenges when it comes to public health

Obesity and smoking-related diseases are two major priorities for government. Over six in 10 adults are overweight or obese according to NHS figures. And we can expect around 96,000 tobacco-related deaths a year, although smoking is on the decline. It’s sobering to consider that health inequalities – inextricably linked with poor public health – mean that in the most deprived areas of the UK, people will have around 20 fewer years of their lives in ‘good health’.

An improvement in public health is good for everyone. It reduces the burden on welfare and healthcare systems and puts less pressure on the public purse. And it contributes to our quality of life and mental health. We can all agree that improving public health should be a priority for everyone working in frontline health and social care.

A ‘wider workforce’ needed to address UK public health

The core public health workforce is estimated at 40,000, which is a tiny percentage of our population. Finding the solution cannot be achieved without making use of other resources.

The Royal Society for Public Health (RSPH) have published their report – Rethinking the Public Health Workforce – which described how other healthcare professionals can contribute to improving the nation’s public health.

Accredited Registers forms part of this ‘wider workforce’. So, in partnership with the RSPH, we decided to conduct research with registrants to assess their views on public health and the contribution they make (and could continue make in the future). The result is our report, Untapped Resources: Accredited Registers in the Wider Workforce.

Research shows how the wider workforce can play a role

Improvements in public health can be made through a range of means. Contact with patients and the public is crucial, hence the creation of the Making Every Contact Count (MECC) initiative. 

The Accredited Registers workforce has thousands upon thousands of contacts with the public each week, making it a logical support network for the public health workforce. What’s more, due to the nature of their work, these contacts average at least 40 minutes – far longer than many primary care interactions.

The report includes the results from a survey, focus groups and interviews, all to assess registrants’ views and experiences in detail. Many already considered the promotion of public health to be part of their job but felt that they were under-utilised. They also expressed the opinion that their capacity to do more in this area was hampered by, for example:

• The ability to signpost to local services effectively
• Public awareness of the Accredited Registers programme
• How to initiate conversations with patients about public health needs – also described as ‘healthy conversations’

The report proposed several solutions including the creation of joined-up, local lists for effective signposting, and the possible creation of a health assessment tool.

What next?

As the report itself concluded, meeting the challenges mentioned above will require systemic change within the Accredited Registers workforce. But with 86,000 registrants now covered by the programme, there is no doubt that this wider workforce is still very much an ‘untapped resource’.

Interested in finding out more? Why not read the report in full?

Related material

• Read the full report Untapped Resources - Accredited Registers in the Wider Workforce
• Find out more about the Accredited Registers programme
• An infographic of key stats from the report
• See key stats for the Accredited Registers programme for 2017/18
• Watch our video about Accredited Registers and working together to improve public health

In our third (and final) blog looking at fitness to practise, we move from the evolutionary approach in our second blog to a revolutionary one. If we could design the fitness to practise process from scratch: what would it look like?

In the final blog of this series about fitness to practise, we will be thinking about what kind of system we would design if we were starting with a blank sheet of paper.

As we outlined in the first blog in this series, reform of fitness to practise is long overdue. The current process has evolved from a system of self-regulation by the professions themselves to a set of outdated and piecemeal legislation which:

• leads to varied outcomes across the regulators
• is confusing and complex to patients and the public, as well as professionals and employers
• is inherently adversarial/combative due to the influence of criminal law which can be stressful for all parties and may not lead to a satisfactory resolution
• is lengthy and expensive – some cases can take several years from the initial complaint to the final panel decision and require significant resource

Just to recap, in our last blog we explored some of the ways in which it might be possible to improve the current system within existing legislation. This included:

• clearer and more consistent use of thresholds to ensure that the right cases are taken forward for investigation at the early stages of fitness to practise
• safe and transparent use of consensual disposal to deal with more cases without taking them all the way to a hearing

Although the concept of the public hearing has been an established feature of fitness to practise for some time, the time may be ripe to ask: ‘Is this really the best way to resolve all cases?’

A painful process – for the public and the professionals

As research we commissioned demonstrates, the public, as well as professionals themselves, find hearings stressful and are often dissatisfied with the outcomes. Our research highlighted strong support for different methods of disposing of cases, but also expressed some concerns about maintaining the rigour of investigations, ensuring sanctions were not overly lenient, maintaining transparency and making sure the complainant’s voice is heard in the process.

Is the answer therefore to keep hearings to a minimum and make greater use of consensual disposal mechanisms?

Reforming fitness to practise using right-touch regulation

In Right-touch reform we have outlined what we see as the purpose of fitness to practise.

‘Fitness to practise outcomes should fulfil the three limbs of public protection by means of meaningful remediation where possible, and degrees of restrictions on practice where not.’

We also laid out principles to guide reform of fitness to practise:

• Use fitness to practise measures only when necessary: issues should be resolved in the place where they occur or by other bodies who are best placed to deal with them, unless they meet the regulator’s threshold for acceptance.
• Link thresholds for accepting concerns to the professional code: it should be clear to registrants, employers, patients and service users when a concern needs to be referred to the regulator. This should be based on the code that sets out what is expected of a registrant.
• Seek early resolution and remediation where appropriate: the purpose of fitness to practise is not to punish. This has implications for the way in which cases are disposed of, and for the design of the fitness to practise process, for example the role of formal adjudication would be diminished.
• Separate investigation and decision-making, including adjudication: the current structures limit the extent to which this is possible for all the regulators, but it remains an important basic principle.
• Ensure accountability, transparency, and consistency: this applies both to policy and to practice; there should be external scrutiny of all decisions to use fitness to practise measures; there should be options to review decisions to close cases at the major decision-making points in the process. There are good reasons why outcomes may be different, but any reforms should strive for greater consistency of process and thresholds where possible.

Our final and more radical principle which would not be possible under current legislation is:

• Use formal adjudication only when the registrant disputes the case: only when there is a dispute between the regulator and the registrant (on material facts, the decision that regulatory action is needed, or the specific action recommended by the regulator) is it necessary to use an independent means of adjudicating.

Do we really need the ‘my day in court’ approach to ensure transparency?

There are, of course, specific benefits to hearing a case in public. Arguments have generally supported the use of public hearings as a way of ensuring maximum transparency and maintaining public confidence in the process as complainants may have a legitimate expectation that their complaint will be heard publicly. Furthermore, as highlighted previously, all regulators are bound by an overarching objective to protect the public and what are known as the three ‘limbs’ of public protection:

• Protecting the public from harm
• Maintaining public confidence in the profession
• Declaring and upholding professional standards.

Current case law suggests that for certain cases, where there is a strong public interest element, it is necessary to retain the public hearing to maintain public confidence. However, we have suggested that the time may be ripe to reconsider this assumption.

Whilst maintaining the transparency, accountability, consistency, and fairness of the fitness to practise process is essential, it is the outcomes (including publication of relevant sanctions) which are primarily responsible for protecting the public. We are not aware of any evidence which suggests that public hearings are the best way of maintaining public confidence or of upholding professional standards. Indeed the research we have mentioned into alternatives to hearings suggests that the public would be open to other approaches.   

What might a new model for fitness to practise look like?

We have proposed a model designed to encourage full co-operation from the registrant from the outset, and to deploy the minimum regulatory force to achieve the desired result. Our proposed approach is outlined as follows:

• a distinction between remediable and non-remediable cases
• early agreed outcomes (including remediation) would be encouraged for all cases, except where the registrant did not accept the facts, the decision to take action, or the outcome proposed by the regulator, and
• only cases where there was such a dispute would be dealt with through formal adjudication
• all decisions relating to cases that were pursued by the regulator post-investigation to be subject to scrutiny by us, and which we could appeal if we felt a decision did not protect the public.

Essentially, fitness to practise would operate two different processes:

1. Accepted outcome with the potential for remediation for cases where the facts, decision to take action, and proposed outcome were accepted by the registrant
2. Referral to adjudication for cases where the findings and outcome were not accepted by the registrant and default to this route if, at any point, the registrant did not comply with the process, or chose to dispute the facts of the case.

This approach bears some similarities to the process already operated by the Scottish Social Services Council. It is also the approach that the new regulator, Social Work England, will operate once it takes over the regulation of social workers in England, which will be known as ‘accepted outcome’.

Fact-finding rather than case-building

There is more detail on this proposed approach in Right-touch reform but essentially it is intended to encourage investigations to take on a more inquiring nature, to establish the facts rather than ‘build a case’ against a registrant. It will also allow consideration at an early stage of whether a registrant has remediated their failings and therefore whether there is an opportunity for a case to be closed with no further action or whether there is a need for further regulatory action in the public interest. It should encourage regulators to work together to establish the facts when there are cases that include different professions.   

There are clearly a number of potential risks and issues to address with such an approach. For example, the importance of a thorough investigation ahead of a decision about how the case should be disposed of, the additional need for transparency and accountability, the importance of separating out investigation and adjudication, the extra responsibility placed on decision-makers and ensuring decision-makers are of sufficient experience and seniority.

There is also further research needed to ensure that such an approach can satisfy the three limbs of public protection. With greater focus placed on remediation, it would be necessary to get further clarity on what type of cases are capable of being remediated and what constitutes effective remediation. We are planning to commission research to check if moving decision-making from a public to a private forum is likely to have any significant effect on the psychology of decision-makers and how decisions are made.

There also needs to be further assessment on how we ensure that insight by the registrant can be fully considered by decision-makers in the absence of a public hearing and how the experience of complainants can be fully incorporated into the process. This might happen through the opportunity to provide an ‘impact statement’ or similar. There would also be merit in exploring what role technology could play in providing complainants, and the public, with access to information considered by decision-makers when a formal hearing is not held.       

Reforming regulation as a whole (and not just fitness to practise)

This proposed approach builds on our research and thinking over the last few years as we try to ensure that the fitness to practise process is more closely aligned with its purpose – to protect the public, maintain professional standards and uphold public confidence. It also builds on feedback we have received from the regulators on their frustrations with the current system and their wish for greater flexibility to dispose of cases in different ways.

Other elements of our proposals for reform, such as a single register and licensing scheme for professionals and common code or shared statement of professional practice would support our vision for radical reform of fitness to practise.

We must note that such an approach would place a large amount of responsibility on the regulators to ensure that the process could be operated in a sufficiently robust and transparent way. As we have highlighted, this model is not, in our view, compatible with current legislation and existing case law which supports the use of a public hearing for cases where the wider public interest is engaged.

In the meantime, we are waiting for the Government’s response to its consultation on regulatory reform. We can only hope that any proposals for change will be bold enough to aim for wholesale reform rather than piecemeal change which to date has brought about significant variations between the regulators on the scope and flexibility of powers.

We know that regulators are thinking creatively about how to improve within the current legal framework and we welcome innovation where possible. We urge the regulators to work together to develop shared solutions to common challenges, to promote a more consistent approach and to ensure that public protection continues to be maintained.

Related material

• Read blog 1 and 2 in this three-part series
• Read a summary of our thinking about how fitness to practise processes could be reformed
• Right-touch reform
• Alternatives to final panel hearings for fitness to practise cases - the public perspective
  
• Our key statistics for fitness to practise for 2017/18

Our first blog in this series outlined what fitness to practise is, how it currently works and why it is in urgent need of reform to ensure it works better for all involved. In this blog, we look at what could be done to make changes without the need for substantial legislative reform.

Radical regulatory reform could be just around the corner. Or it could be a mere speck on the horizon. However, one thing that we can probably all agree on is that the regulators’ fitness to practise processes are well passed their best before date and in urgent need of reform.

Following the Department of Health and Social Care’s consultation Promoting professionalism, reforming regulation, we have been hoping to see political momentum for regulatory reform. However, with the appointment of a new Secretary of State for Health and Social Care after the recent cabinet reshuffle, the prospect of radical reform any time soon remains uncertain.

Despite this, there are practical things that can be done now. In this blog, we explore how it is possible to introduce changes to fitness to practise without the need for substantial legislative change.

We have identified two key areas where the current system could be improved and which will also benefit any future, more radical reform. These are:

• how regulators decide which cases to investigate and which to reject (known as 'thresholds')
• how regulators can deal with cases safely and transparently without taking them all the way to a hearing (also known as 'consensual disposal')

Thresholds for investigation of concerns

As explained in our first blog, regulators review all complaints received from patients, employers or registrants themselves. The regulator then decides whether these complaints meet the threshold for further investigation.

This is a hugely important part of the process because it’s the gateway to fitness to practise, so it’s crucial that cases closed down at this stage do not pose a risk to the public. However, as previously noted, fitness to practise takes up a large proportion of the regulators’ costs so they must strike a balance between properly investigating cases which raise public protection concerns whilst ensuring that resources are not wasted on cases which do not.

A lack of transparency and significant variations in approaches were two issues that leapt out at us when we looked at the systems the regulators currently use to decide which cases to investigate.

We have previously highlighted concerns about regulators seeking to make decisions at the threshold stage about whether there is a ‘real prospect’ of a panel finding that the professional’s fitness to practise is impaired. These decisions are usually made in the more formal context of the Investigating Committee or by Case Examiners. So, this behaviour by regulators could prove problematic as threshold processes fall outside of the formal fitness to practise decision-making stages and cannot be challenged other than by the use of Judicial Review.

We recognise the benefits of a formalised early screening stage of this nature. However, to ensure public protection is not undermined, greater consistency and clarity of approach is required. In Right-touch reform, we outlined our support for a model with clear threshold criteria for screening cases before they reach the Investigating Committee stage, providing certain requirements are met:

• full transparency of policy: the regulator’s policies and threshold criteria for all pre-Investigating Committee stages to be consulted on and published
• a clear demonstration of how these thresholds enable the regulator to fulfil its over-arching statutory objective relating to the three limbs of public protection
• accountability of process and decision-making: clearly documented reasoning and decisions; formal options for challenging a decision to close a case at key decision-points; option of scrutiny of such decisions by the Authority; and quality assurance of decisions through the publication of audits and regular reports to Council, and
• hierarchy of decision-making: the decisions made at these early stages should not preempt or undermine the role of the Investigating Committee/Case Examiner.

As this is a fast-evolving area of regulation, there is a lack of clarity about the different approaches being pursued. Building on the information gathered in Right-touch reform, we are proposing to carry out a cross-regulator review of thresholds and focus in particular on identifying any risks. 

There is also the need for discussion about how serious an allegation has to be to warrant regulatory action. Ultimately, consistency of approach is crucial. It cannot be right for some regulators to reject cases that other regulators would accept and there should be greater harmonisation of approach. We believe this is an area where progress could be made without legislation.

Disposing of cases by consent

The second area for change is how cases are ultimately resolved. As highlighted in our first blog, the current fitness to practise process is lengthy and can be stressful and unsatisfactory for all those involved. Furthermore, the cost of taking a case all the way to a public hearing can be huge. Therefore, some regulators have sought changes to their legislation to allow greater flexibility of how cases are disposed of at the end of the investigation. Others have sought to push the boundaries of what is acceptable within their current legislation and under existing case law. 

A number of the regulators are now using Case Examiners to dispose of cases at the Investigating Committee stage. Rather than a three-person committee, Case Examiners work in pairs, one lay person (non-professional) and one professional, with one drafting the decision and sharing it with their colleague for agreement. If the Case Examiners disagree on the outcome, then the case will be referred to the Investigating Committee for a decision. We have not identified any specific concerns about decisions made by Case Examiners rather than Investigating Committees and recognise that they may provide a more consistent, cost-effective alternative. However, we have highlighted the need for greater transparency about how Case Examiners reach their decisions due to the fact they are made outside of a formal meeting of the Investigating Committee.

In addition to referring a case to a fitness to practise committee or closing a case, some of the regulators have powers to issue warnings and some have powers for their Investigating Committee or Case Examiners to agree to what are known as ‘undertakings’ with registrants at this stage. The General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland currently have this in place for their Investigating Committees. At the General Medical Council, the General Dental Council, and the Nursing and Midwifery Council, Case Examiners have these powers.

Previously, at the end of an investigation, the Investigating Committee or Case Examiners would make a binary decision about whether to refer the case to a fitness to practise panel. This was based on what is known as the ‘real prospect test’. If there was a real prospect of a panel finding that the registrant’s fitness to practise was impaired then the case would be referred to a panel; if not, the case would be closed.

In certain cases, undertakings are now used as a way of disposing of cases that meet the real prospect test. Undertakings are essentially a set of conditions agreed with a registrant (if they are willing to comply with them). Compliance is monitored, and any breaches may be referred to a fitness to practise panel. All the regulators using this model specify that undertakings cannot be offered in cases where there is a likelihood of the registrant being struck off the professional register.

We have always been supportive of consensual disposal in principle. We know that fitness to practise proceedings can take their toll on professionals subject to them, as evidence collected by the GMC and others demonstrates. Our own research also shows that public hearings can be stressful for both complainants and witnesses. It would seem to make sense, therefore, to look at a process that moves away from this adversarial, courtroom style setting.

Behind closed doors

Though in principle we think consensual disposal is a good idea, we have some concerns about how it has been implemented in practice, especially regarding ‘undertakings’. One of our main concerns is that disposal of cases outside of a public hearing, and by Case Examiners in particular, means that decisions involving potentially serious misconduct are outside the scope of our scrutiny powers. It also pushes decision-making from a public forum into a private one. Under our Section 29 powers, we can appeal to the courts decisions made by a fitness to practise panel which are not sufficient to protect the public, but have no such power for decisions made by consensual disposal.

Furthermore, there is a lack of transparency and accountability with decisions currently made in this way, leading to a risk of inconsistent or poorer quality decision-making. Decisions about whether to refer a case to a tribunal or dispose of it consensually should also be clearer. Currently, regulators refer to proportionality when deciding whether to refer a case to a hearing.

We believe that, under the current system, regulators should consider whether a hearing is necessary to fulfil the threefold purpose of fitness to practise (protection of the public, maintaining public confidence and upholding professional standards). We have also highlighted how important it is that the registrant admits the facts and accepts impairment for cases to be disposed of consensually.

In Right-touch reform we outlined a series of measures which, if implemented, should provide some assurance that consensual disposal decisions are transparent, accountable, and protecting the public. These are:

• a clear demonstration of how the decision-making framework for consensual disposal enables the regulator to fulfil its over-arching statutory objective relating to the three limbs of public protection
• full transparency of policy: the regulator’s policy and decision-making framework to be consulted on and published
• accountability of process and decision-making: clearly documented reasoning and decisions; formal options for challenging a decision to close a case; scrutiny of all decisions by the Authority; and quality assurance of decisions through the publication of audits and regular reports to council
• hierarchy of decision-making: the decisions of the Case Examiners/Investigating Committee should not preempt or undermine the role of the panel at a hearing, for example where there is a dispute about material facts
• independence of decision-making: those making decisions about how to dispose of a case on completion of the investigation should not have been involved in the investigation.

There is currently no clear picture of how undertakings are being used. We have proposed a cross-regulator review of current practices to look at the kinds of cases being disposed of in this way and identify any risks associated with this approach as well as further research into what constitutes effective remediation and the psychology of decision-making behind closed doors.

We also want to see wider discussions on the factors that need to be taken into account when considering whether cases should be referred to a hearing, including the public interest, remediation, insight, and severity of cases. This could feed into guidance for decision makers at this stage in the process, possibly supported by a set of guideline cases, reflecting Dame Janet Smith’s recommendation from the Shipman Inquiry.

What would more radical reform look like?

This blog lays out some of the ways in which the current system could be improved with minimal legislative change. But what if we were starting with a blank sheet of paper? What would fitness to practise look like? Would it even have the same name?

In the final blog in this series, we'll be outlining our proposals for radical reform of fitness to practise, moving away from the legalistic, adversarial system to create a system which protects the public and works better for all involved.

Related material

• Right-touch reform
• Right-touch reform 2017 - chapter on fitness to practise
• Right touch reform - a summary of our thinking on the future of fitness to practise
• Our response to Promoting professionalism - reforming regulation

We've probably all seen articles about doctors or nurses being 'struck off' and the fitness to practise process even made a recent appearance on prime-time ITV in its crime drama 'Unforgotten'. But what exactly is fitness to practise and why is reforming it long overdue?

Professional regulation is often a mystery to most of the population. However, fitness to practise, the means by which regulators ensure that those on the professional register are safe and competent to practise in their field of health or care, is probably the best-known aspect.

Articles in the tabloids about professionals being ‘struck off’ is usually the public’s primary source of information about fitness to practise. Healthcare professionals without personal experience of the process may have a general awareness or fear about being referred to the regulator based on stories from colleagues.

But what is fitness to practise? How does it work and why does it need reform to make it work better for patients and professionals? Through a series of three blogs we’ll be exploring:

1. How fitness to practise works now and the case for reform
2. Incremental change – ways that we can improve fitness to practise in the here and now
3. Radical reform – how can we design a fitness to practise model for the future?

What is fitness to practise?

Fitness to practise is the process used by statutory professional regulators to handle complaints made about health and care professionals. Although a range of complaints get raised with regulators they can only proceed with cases where:

• the registrant in question can be identified
• the concern that is raised is relevant to public protection
• restrictions may need to be placed on the registrant’s registration.

In carrying out their functions, including fitness to practise, all regulators are bound by an overarching objective to protect the public. There are three ‘limbs’ of public protection which are:

• Protecting the public from harm
• Maintaining public confidence in the profession
• Declaring and upholding professional standards.

How does fitness to practise work?

There are nine different professional healthcare regulators and the legislation that governs how they operate is all different. However, in general terms, the fitness to practise process works as follows.

Regulators will review a complaint received from an employer, member of the public or from the registrant themselves to decide whether it meets a threshold for investigation. They may also decide to consider a concern arising from an external report or patient safety incident.

They will then carry out an investigation into the complaint and decide whether there is a ‘realistic prospect’ of the registrant’s fitness to practise being found to be impaired. In this context, impaired means that if they continue to practise one of the three ‘limbs’ we mentioned above could be compromised. So, they could pose an ongoing risk to the public; or there may be a threat to public confidence; or a need to uphold professional standards.

If the realistic prospect test is not met, then the case can be closed, although the registrant may still receive a warning.

If the test is met, then the case will usually proceed to a public hearing with a panel, normally comprised of two lay people (non-professionals) and a professional. They will decide on the question of impairment and on an appropriate sanction.

This diagram illustrates the key stages in the process.

Figure 1: A generic fitness to practise process

Why is reform overdue?

We have long argued that reform of the fitness to practise process is badly needed. This is largely due to the many variations/inconsistencies across the regulators due to their differing legislation. The regulatory bodies were created at different times and given different legal frameworks to start with. Furthermore, some regulators have been modernised more than others, in part because opportunities for piecemeal reform have not been equally distributed – and none of the processes are quite the same.

There are a range of other issues inherent in the current system:

• Sanctions imposed vary between regulators for different professional groups – this could cause issues with public protection but could also be seen to be unfair.
• The language of fitness to practise varies across the regulators which can make it unnecessarily confusing and complex for patients, the public and employers.
• The process is heavily influenced by criminal law and as such is inherently adversarial/combative; the process involves the regulator putting their case forward and the registrant and/or their legal representative defending it. This can be stressful for all parties and may not lead to a satisfactory resolution.
• The process is also lengthy – some cases can take several years from the initial complaint to the final panel decision, and can be very expensive. What’s more, the longer a hearing takes, the more it gives the appearance of being about punishment rather than protecting the public.

Frustratingly, despite a compelling case for reform, previous attempts have been stymied. In 2015, the Law Commissions published a draft Bill to reform the system which was accepted by Government but this ran out of Parliamentary time to make it into law.

The Government has recently consulted again on proposals for reform, but with pressures on Parliamentary time due to Brexit legislation and a range of other projects being bumped to the front of the queue, the chance of wholesale legislative reform any time soon seems slim.

Light at the end of the tunnel?

However, there are signs of change afoot. The proposed model for the new social care regulator, Social Work England may pave the way for a new approach to fitness to practise hopefully addressing some of the problems we’ve identified with the current model. (Read the latest issue of our e-newsletter for more details about Social Work England.)

In the next blog in the series, we’ll look at ways of improving fitness to practise both now and in the long term whilst ensuring that regulators continue to protect the public.

You can read more about our ideas for reform of fitness to practise here.

Related material

Read our chapter on fitness to practise from our special report Right-touch reform

Read a summary of our thinking about reforming fitness to practise 

Find out more about our power to appeal final fitness to practise decisions

See some of our key statistics on fitness to practise from our 2017/18 annual report

Looking forwards – we need to raise awareness of the programme and its value

Related material

Harry Cayton with Philip Dunne MP at the launch of the Untapped Resources report on 31 October 2017.

Find out more about the Accredited Registers programme

Read key statistics for the programme for 2017/18

Read the report Untapped Resources - Accredited Registers in the Wider Workforce

Find out more about the conference in the latest issue of our newsletter

Never heard of Accredited Registers before? In this blog, we’ll talk about the programme, why it exists and the gap it fills in public protection.

You’ll probably be aware of the regulation of professions governed by law, e.g. doctor, dentist, nurse. Their professional titles (and some practices) are legally protected, making it a crime to impersonate them. They are regulated by one of nine regulators – find out more here about what regulators do. Still not sure? Read our blog explaining more about what professional regulation in the UK is.

But not all health and care professions are treated in this way. While over 30 professions are regulated, there are many more which aren’t. In 2012, our remit was extended (in the new Health and Social Care Act) to include the establishment of an accreditation system for unregulated professions. This is now known as the Accredited Registers programme.

Organisations holding registers of unregulated professionals can apply to us for accreditation. You can find out more here about how the programme works. To date, 25 registers have been accredited, encompassing a total of around 85,000 healthcare practitioners.

Statutory and voluntary regulation, side by side

For example, the regulator of doctors, the General Medical Council, has issued clear guidance that doctors can refer patients to practitioners on Accredited Registers. After all, the government itself recommends that people use only an Accredited Register when consulting a health practitioner who is not regulated by law.

It’s worth noting that the two systems don’t operate independently of one another. Some doctors, nurses, dentists, physiotherapists and pharmacists are also qualified to practice in areas such as complementary therapies or non-surgical cosmetic treatments. As such, they have chosen to apply for registration with an Accredited Register in addition to complying with the legal requirement to register with their statutory regulator. This demonstrates a personal commitment to the highest standards.

Practitioners on Accredited Registers play a vital support role for today’s health and care services. Many work in private practice; however, others are employed by the NHS and local authorities. With everyone in the NHS stretched so thinly, it’s more important now than ever to look for creative ways to plug the workforce gap. We’ve always said that Accredited Registers is one such solution.

Statistic taken from our joint report with the Royal Society for Public Health: Untapped Resources - Accredited Registers in the Wider Workforce

Why would the public use someone on an Accredited Register?

Got a complaint? No problem

Employers can also benefit by using health and care practitioners on Accredited Registers

The public is one of several groups for whom Accredited Registers are important. Anyone employing or commissioning a healthcare practitioner who is not regulated by law should be doing their due diligence and checking that person’s competence.

Is accreditation easy to gain?

No. For an organisation to receive accreditation (and have permission to use the Accredited Registers Quality Mark), they must meet a set of 11 standards in areas including standards-setting, education and training, complaints handling and risk management. The process is exhaustive and can take many months to complete. This guarantees that accreditation is truly a mark of quality.

Related material

• Key stats for the Accredited Registers programme from our latest annual report
• Highlights for the programme during 2017/18
• Our joint publication with the Royal Society of Public Health - Untapped Resources - Accredited Registers in the Wider Workforce or this infographic summarising some of the findings
• A short video explaining more about the programme

We use our Standards of Good Regulation as a tool for measuring how the nine regulators are carrying out their duties, including protecting the public. They form the basis for the judgements we make in our annual performance reviews, which we present to Parliament.

The current Standards have been in place since 2010. So, last year we asked you if it was time for a change? We consulted on how we might change them so that they continue to be fit for purpose. The responses we received helped us draft a new set of Standards. We now want feedback on these more detailed proposals and have just published our second consultation.

What is in the Standards of Good Regulation?

The Standards presently cover the four main activities that the regulators carry out:

• standards and guidance
• education and training
• registration
• fitness to practise. 

There are a number of Standards under each of these activities, with 24 Standards in total. You can see the current standards here.

What’s prompted the change?

A good deal has happened in the regulatory world since the Standards were last updated in 2010. We recently introduced a new performance review process and some of the regulators’ Fitness to Practise processes have changed. The regulators generally meet the bulk of the Standards, suggesting that they could be better targeted. So, it was right to review them to see whether they were still addressing the core regulatory functions.

Our first consultation

We issued our first consultation in June 2017. We asked whether the existing Standards were right. We were also keen to hear whether there were other areas that we should look at. For example, the current Standards do not look at the regulators’ governance processes and they do not look at the regulators’ approach to equality and diversity.

We also asked whether we should adopt a different approach to reporting? Should we continue with the current binary approach where a Standard is either met or not met?  Or should we adopt a more graduated approach? We also wanted to adopt a right-touch approach, so that we are proportionate, agile and targeted.

We received 29 responses to that consultation and held several events to discuss the questions. We analysed the responses and held further meetings with the regulators to discuss our emerging proposals.

What we decided

We are now consulting on the exact wording of the new Standards. Following the first consultation, we decided that:

• We should include new Standards dealing with the way in which the regulators work as organisations – how they embed change, learn from their different areas of work and report and manage their performance
• We should include a Standard relating to equality and diversity which requires regulators to be aware of the diversity of their registrants and service users and to avoid inappropriate barriers in their processes
• We should amalgamate some of the existing Standards and omit some that are no longer relevant
• We will incorporate right-touch principles in our assessment of whether regulators meet the Standards
• We should continue to adopt a met/not met approach to the Standards because this provides a clear indication for the public and because we can deal with the nuances in the discussion of the performance.

We have reduced the number of Standards from 24 to 18. We want to continue to take a proportionate approach to reviewing the regulators. It is particularly important that we should be able to assess the way in which their internal processes affect their performance. Our role is not to tell the regulators what to do, but they need to have processes in place to ensure that they identify matters of concern and are able to address them.

We also wanted the Standards to be flexible enough to enable regulators to have the opportunity to innovate. For example, there is no recognised right way to deliver continuing fitness to practise programmes. Our proposed Standard here is deliberately wide, aiming at the outcome that registrants continue to be fit to practise, while allowing the regulators to decide what arrangements will be most suitable for their specific sector.

The new consultation

The new consultation asks for views about the wording of the Standards and about the evidence that we will seek to assess whether the Standard is met. We want to ensure that the burden on the regulators is not too great, while ensuring that we continue to have the information we need to make a proper judgement. We recognise that some regulators may not immediately be able to meet all the new Standards and we will work with them to address those points.

We want to be sure that the wording will work and that the evidence we are proposing to collect is suitable.

The next steps

The consultation closes on 10 September 2018 when we will start to analyse the responses. We hope to announce the new Standards in the autumn of 2018 and start to use the Standards in our performance reviews for the 2019/20 cycle. However, we would like to pilot some of the new Standards, if possible, with some regulators in the previous performance review period.

The Standards must be clear so that the public can easily understand how the regulators are performing. They should also be proportionate so that they are right for the regulators and the burden of demonstrating compliance is not too great.

We want to hear from you and we want to know what you think about our proposals. Please read the paper and respond to David.Martin@professionalstandards.org.uk by 10 September 2018. We look forward to reading what you have to say.

Related material

Find out more about the consultation:

• consultation paper
• the proposed new Standards
• the draft evidence framework
• a summary of responses received to the June 2017 consultation
• the current Standards of Good Regulation 

Or watch short animation which explains our new proposed Standards.

The Authority's Chief Executive and Williams Review panel member, Harry Cayton, shares his thoughts on what he thinks about the Review and the recommendations it puts forward.

The publication of Professor Sir Norman Williams’ Review of Gross Negligence Manslaughter in Healthcare is an important moment in the many consequences of the General Medical Council’s (GMC) erasure of a doctor who had been convicted following the death of a child in her care. It is not the end of the story however, the doctor’s appeal against her erasure will be heard by the Court of Appeal this summer and the GMC has commissioned its own review, by Dame Clare Marx, chair of the Faculty of Medical Leadership and Management, into how gross negligence manslaughter and culpable homicide are applied to medical practice.

Prosecutions for gross negligence manslaughter are rare

The first thing perhaps to know is that prosecutions for gross negligence manslaughter are rare and convictions rarer; that the majority occur in the construction industry and only a small number of health professionals have been so convicted, some of whom had their convictions overturned on appeal. The anxiety by doctors to this exceedingly rare event may have been misplaced but needed to be addressed. In addition the conviction in the criminal court seems to have become muddled up with the decision by the MPTS to suspend the doctor and subsequent successful appeal by the GMC to have her erased.

The Review's recommendations

In summary the Review makes the following key recommendations:

• that there is revised guidance into investigation and prosecution of gross negligence manslaughter in healthcare to improve consistency and set the threshold clearly as ‘truly exceptionally bad’
• that human factors and systemic issues of care are considered to put the actions of individual healthcare professionals into context
• that bereaved families be provided with better information and consistent support
• that there should be training and accreditation for expert witnesses and that their value should be better recognised
• that regulators should make clear that they will not use reflective statements in disciplinary proceedings and that the General Optical Council and the GMC should lose the legal right to demand such material
• that the GMC should lose its right of appeal against the Medical Practitioners Tribunal Service (MPTS) which should continue with the Professional Standards Authority
• that research should be done into differential outcomes for registrants in disciplinary proceedings and over-representation of Black, Asian and ethnic minority registrants in fitness to practices cases be investigated and addressed.

Related material

• Right-touch reform
• Right touch reform - a summary of our thinking on the future of fitness to practise
• Authority's written evidence for Williams Review
• Authority response to GMC consultation on changes to modernise and reform the adjudication of fitness to practise cases
• CHRE response to GMC consultation on establishing the MPTS 2011
• Williams Review on gross negligence manslaughter in healthcare: the report of a rapid policy review
• Find out more about our power to appeal regulators' final fitness to practise decisions. Our power to do this comes from the NHS Reform and Health Care Professions Act 2002
• Or you can watch a short animation which explains more about why and when we can appeal a regulator's final fitness to practise decision

The Complementary and Natural Healthcare Council (CNHC) was established in 2008 with government support as the voluntary regulator of a wide range of complementary healthcare practitioners. Since 2013 we have been the holder of an Accredited Register and are one of 25 organisations currently accredited by Professional Standards Authority.

Parallel systems

The critical difference between the two systems is that, unlike statutory regulation, there is no law that says anyone must register with organisations (like CNHC) that hold a Professional Standards Authority Accredited Register. However, it’s in the public interest for the two systems to connect when appropriate. I’d like to highlight three examples of this:

1. The General Medical Council has issued clear guidance that doctors can refer patients to practitioners on Accredited Registers. 
2. Some doctors, nurses, dentists, physiotherapists and pharmacists who are also qualified to practise complementary therapies, have chosen to register with CNHC in addition to complying with the legal requirement to register with the relevant statutory regulator. 
3. A few months ago the Professional Standards Authority and the Royal Society for Public Health produced their joint report Untapped Resources - Accredited Registers in the Wider Workforce, in which they identified very clearly the potential for practitioners on Accredited Registers to play a much bigger role in improving public health in the UK and reducing the burden on an overstretched NHS. It noted that: ‘Practitioners registered with CNHC support public health by encouraging their clients to make a range of lifestyle changes. These include improvements to diet and nutrition, support with giving up smoking and losing weight, support with reducing stress, improving sleep, managing pain and other symptoms, as well as overall enhancements to wellbeing. All CNHC registrants are committed to enhancing the UK public’s health and wellbeing.’

A key recommendation in the report is that Accredited Register practitioners should be able to refer directly to NHS healthcare professionals. By providing this referral pathway, patients would no longer be forced to make time-consuming GP visits just to secure the referral to the NHS funded healthcare that they need.

The public need to know about the Accredited Registers programme

Raising public awareness is a drip, drip, drip process that requires dogged determination and investment in the widest range of media and public events. CNHC spends a significant amount of its financial and human resources in reaching out to the public. We want them to know that government recommends that people use only an Accredited Register when consulting a health practitioner who is not regulated by law.

We also want them to know they can have confidence that the rigour of the Professional Standards Authority in scrutinising the performance of the statutory healthcare regulators is matched by the rigour of its process for checking that organisations who wish to hold Accredited Registers meet all of its detailed standards.

Related material

Read the full report Untapped Resources - Accredited Registers in the Wider Workforce or see a summary of the findings in this infographic.

Always use our Check-a-Practitioner tool to make sure that you choose a practitioner who is regulated or on an Accredited Register.

Watch our short video to find out more about Accredited Registers and the benefits of using practitioners on them.

In this blog, I am marrying reflections from my academic work on identity theory in politics and over 10 years’ involvement in healthcare professional regulation. I argue that identity is about belonging to a space and that regulation does play a part in forging a professional identity. Healthcare is used as my main focus, however, many of the assumptions below could easily apply to several other professional disciplines such as law and engineering.

Identity and space

Identity is about a feeling of belonging to a collective group. Many theorists (including Lefebvre, Foucault and Soja) considered space as a quality of social being and it is commonly believed that people are placed within a space, and that ‘they come from somewhere’. People tend to feel more comfortable within an environment that is familiar to them. Increasingly we have been making the distinction between place and space, where place refers to a physical location and geography, whereas space is not geographical but mental, imagined or virtual.

Traditionally, identities have been defined by people feeling that they belong to a group,thanks to a set of values or rules that are widely known and accepted by those joining. Those who do not belong to that specific space are considered to be intruders and outsiders. Traditional thinking asserts that space is a ‘solid place’ for its members, where they feel most comfortable and secure. Space is the safe, sheltered ‘home’.

Going global

Contemporary theories of space look at understanding space from a social perspective. Space is about social interaction, communication and networks. The feeling of belonging to an identity is strengthened through engaging and interacting, rather than adhering to a set of boundaries and rules. This applies to professional identity as people can feel part of a wider global professional group as opposed to just their local community and they tend to be more engaged through their professional networks as opposed to those setting ‘rules’ for them.

Identity and geography

When I applied this theory to politics, it became clearer that although traditionally one could argue that identity is about belonging to a geography (think nation state) and a set of rules and symbols (think flag, anthem, constitution) in contemporary theory, identity is about belonging to the so-called ‘Thirdspace’. This is a global space of connections (think social networking) with an imagined symbolism (mainly demonstrated through discourse and use of language and narrative).

Identity and belonging

Identities are not static. They evolve over time through interaction and social negotiation. The same can be said for professional identity: it evolves from being a student, to a young professional, to an experienced professional in a variety of roles, from academia to senior management in service delivery. It is important to also note that identities are hybrid and it will always be the case that an individual will feel they belong to more than one collective identity. Healthcare academics for instance belong both to their healthcare profession and to their academic role. It is important for the professional regulator to be mindful of that professional journey and be able to adapt its regulatory interventions accordingly.

Identity and symbolism

Professional identity involves the use of symbols: uniforms, badges, names and titles. However, with the evolution of space as argued earlier, these images of identity can be seen as traditionalist and what contemporary theory sees as symbolism are discourse, language and narrative in the expression of knowledge. In other words, you are not a professional because you are wearing the ‘badge’ or ‘uniform’ but because you portray professional values in your behaviour, expressing your knowledge and expertise and people trust you for that. I recognise this is still a largely contested area in many quarters of professional identity within and beyond healthcare.

The regulator’s role in this area is about ensuring the individual’s professional identity is recognised through their knowledge, critical thinking and expertise; registration and licensing can be the symbols of that. Regulators have found it hard though to spell out their role in identity symbolism. In the same way professional associations strengthen belonging through the ‘badge’ symbol, regulators may need to consider strengthening their narrative around the importance of registration as part of professional identity.

So where does regulation fit in identity theory?

Professional regulators set the rules and values of a profession through professional standards and codes of conduct. They thus create the professional space of identity for the professionals they regulate. Without them there is no national or global definition of a profession, which is why many unregulated professionals seek regulation and standards as a form of professional recognition.

Although regulators are the creators of identity in ‘designing and providing the space’ through a set of rules, they are not the ones who exercise those rules through ongoing interaction and social networking. Professional associations, colleges and societies play a significant role in social engagement while academic institutions are the first point of contact in the delivery of professional identity through teaching and learning.

Regulators remain at a distance from the exercise of professionalism. They are not as close to the individual as educators, employers and professional associations and because of that do not tend to interact socially in the way those other groups do. Many professionals see their regulators as an authority that takes negative action through fitness to practise processes as opposed to a positive instigator of professional identity. As a result, professionals align themselves to their professional group/association, feeling more supported by them, interacting with them more frequently and seeking their advice, as opposed to how they see their regulator – as the organisation which holds them to account. Regulators need to ask themselves: ‘What role in professional identity do they want to play in the future?’ They can choose between remaining at a distance, using authoritative language and being seen as the rule-setting body. Or they can change tack by articulating their role in professional identity formation. A balance needs to be struck between regulators continuing to demonstrate that they are about public protection, while strengthening their narrative around being an instigator of professional identity.

Dr Katerina Kolyva is the Executive Director of the Council of Deans of Health. She holds a PhD on European identity from the University of Kent.

Related content

Find out more about our research into professional identity and regulation or watch this short video about what our literature review revealed.

The last six months have seen big developments towards reforming the professional regulators in health and care. In October 2017, the four-country consultation on the future of the professional regulators was published, Promoting professionalism, reforming regulation. The consultation asked for views on a number of proposals for change, including radical options such as merging regulators together to create a small number of larger organisations. In November, we published a highly detailed report on the ways we thought that the sector should change, Right-touch reform, and followed this up with our response to the consultation. Many other bodies and organisations also submitted their views, evidence and opinions to the consultation, and at the time of writing we are looking forward to learning more about what will happen next.

So why is that these steps are being taken? What’s wrong with what we’ve got?

The current regulatory system is a recipe for confusion. There are nine statutory regulators; there are currently 25 registers under the Authority’s accreditation scheme, with a larger number of organisations playing a role in supporting those registers and others outside the scheme; and there are other parts of the workforce whose work raises risks to patients and the public but who are not captured under either of these arrangements. Looking just at the statutory regulators, there are differences of size, approach, culture, legislation, standards, and performance. You can describe it however you like, but beware generalisations – there’s a list of exceptions for every rule. What’s more, there’s no formal way at the moment to decide what is the right kind of regulation for different groups.

If even health professionals don't understand who regulates them and what those regulators do, surely there is something wrong?

Over and over, we see widespread misunderstanding of the purposes of regulators and their different functions. We hear the frustration of members of the public for whom the distinction between a complaints process and a fitness to practise process is academic. We hear registrants express the view that they should be getting a service back for their registration fees, as if regulation was focused on their interests and needs rather than the public’s. (Of course regulators should be efficient and fair, but it’s not their job to provide a ‘service’ to registrants – they’re acting on behalf of the public.) Employers and educators have to deal with different standards and different quality assurance processes. 

There is no simple way to explain professional healthcare regulation

Navigating this maze can be baffling to say the least. A few years ago, we once tried to map out the path that a complaint might take through the regulators and other potential ports of call. We tried to base this first on the London Underground map, then on a roadmap, then on a snakes and ladders board. You name it, but it didn’t work; a mere two dimensions didn’t seem to be enough to capture how complicated it was. We just couldn’t find a way to set out simply what someone should do who wanted to raise a concern where different organisations would be involved, particularly where this concerned a situation involving registrants of different regulators. 

The current regulatory legislation for dealing with complaints and concerns harks back to a time when we understood far less about the real reasons things go wrong in health and care, and the real reasons that human beings’ performance sometimes fails and causes harm, or exposes people to risk of harm unnecessarily. Current fitness to practise processes are too confrontational, protracted and expensive and don’t focus enough on really understanding the different aspects of a situation where someone hasn’t followed professional standards. While we can see that the regulators are working to do the best with what they’ve got, what’s really needed is a radical overhaul of legislation, structures and processes.

Time for a change?

For these and other reasons that we’ve set out elsewhere in great detail, we think that change is overdue. Our preferred option is a single regulatory organisation, with a single set of professional standards, a shared way of handling and investigating complaints and concerns, which could ultimately encompass all health and care professions and occupations. For those professions and occupations whose work is riskiest, we think there should be a licensing system, rather like a driving licence with permission to drive different kinds of vehicle depending on the tests you’ve passed. Behind it all, we need a way of deciding who needs a licence and who doesn’t – to compare the range of work of professions side by side and determine how risky they are. The Authority has developed a model to do this, which we’re looking forward to doing more work on and trying out on more groups as soon as we can.

We think the ‘single assurance body’ that we’ve proposed would save money in the longer term. Of course, at first, organisational change is expensive, but once a new structure is set up, we think there is a lot of scope for savings and efficiency.

We’re looking forward to hearing what the Government plans to do next, and will be doing all we can to make sure it’s influenced by the best evidence that there is, and that it’s focused on the interests of patients and the public. In the meantime, if you’re interested to read more, you might like to dip into Right-touch reform.

Related material

Find out more about why we think regulation needs to be reformed.

• Right-touch reform 2017
• Right touch reform - a summary of our thinking on the future of fitness to practise
• Right touch reform - a summary of our thinking on harm prevention
• Right-touch reform 2017 - modernising registers
• Right-touch assurance 2016
• Professional Standards Authority response to Promoting professionalism - reforming regulation

What are some of the challenges for regulation? 

As we mentioned in part 1, the origins of professional healthcare regulation in the UK are mixed and varied. The oldest regulator, the General Medical Council, was founded in 1858 and healthcare provision has changed considerably in the intervening 160 years, in line with population needs and advances in medicine. This presents a variety of challenges for regulatory bodies, so let’s take a look at what they might be.

Legislation

Statutory professional regulation derives its powers from many different pieces of legislation. But while the bodies regulating professionals have evolved, legislation hasn’t kept up the same pace. Not only does this affect how regulation works in practice, it also means that making changes to legislation can be complicated and slow. With regulation needing to be agile in response to extensive changes taking place in health and social care, this becomes a real problem.

Consensual disposal (one element of the fitness to practise process) is a good example of how lack of reform is constraining innovation. For anyone unfamiliar with the term, consensual disposal is a process used by some of the regulators in cases where there is agreement on the facts of the case and proposed sanctions, and where there may be no public interest or need for a hearing.

The process then has the potential to be simpler, faster and more flexible for all parties, as well as being less adversarial. So far, so good. However, not all regulators have legislation to use consensual disposal which means that those who don’t are somewhat constrained. In lieu of having these powers, those regulators are restricted to small procedural changes.  

It is important to note, however, that the use of consensual disposal must be balanced with transparency and accountability. While we have the power to appeal cases which proceed to a hearing, we don’t have the same powers over consensual disposal cases. In our view, this poses a potential risk to public protection.

Workforce pressures

‘NHS at breaking point’ and ‘Pressures on staff at unacceptable levels’.

We’re used to seeing headlines like these in the media. Workforce pressures in the NHS are a modern reality. In response, new roles are being piloted such as nursing associates who are intended to act as a bridge between the unregulated workforce and registered nurses. This will be a regulated, but not all newly introduced roles may be regulated.

So, why is this a challenge for regulation? And what is the expectation of such roles? Well, they may deliver advantages to the workforce such as flexibility and low cost. And flexibility is one important reason why statutory regulation (which tends towards inflexibility) may not be the right approach to making the best use of new roles – or relieving workforce pressures.

Teamworking

Professional regulation has always been designed to hold individuals to account. That’s fine in principle, except for the growing trend towards multidisciplinary teams in health and care systems across the UK.

In reality, many ‘incidents’ occur within teams and should be handled within the context of the team. So, there are inevitable questions being raised about how regulation can deal more effectively and efficiently with these issues. This is not aided by the divide between system regulation (regulation of places such as hospitals) and professional regulation.

Problems with the fitness to practise process

Regulators, and those who have experienced the fitness to practise process, would all agree that it can be extremely stressful for registrants and witnesses alike. This stress can be made worse in cases where it can take several years from the initial complaint to the final decision, – not an uncommon occurrence. 

Decisions about cases (which may relate to the same incident or on the surface appear similar) can vary between regulators. Of course, this raises questions about the effectiveness of regulators and how fair the process really is. It can also be expensive, especially when the hearings run on for many months. So, how can fitness to practise be improved?

Without significant legislative change, there are limitations to what can be improved in the short-term which is why we will continue to push for meaningful regulatory reform. Find out more about how we think fitness to practise processes could be reformed. But there is encouraging evidence that regulators are adapting within the confines of the system. Moves are being made to modernise fitness to practise processes, such as seeking early resolution of cases and remediation where appropriate.

How are regulators adapting to meet these challenges? 

Prevention is better than cure. And the regulators would agree, as they shift their focus and budgets towards the prevention of harm. 

This is sometimes called ‘preventative regulation’ and can be broken down into two steps:

1. Regulators collect data and insights from, and about, professionals (on what influences them) to better understand how and why harm occurs.
2. Regulators use this data and share these insights with employers and other stakeholders to prevent harm from occurring. 

Of course, regulation is just one factor in influencing how healthcare professionals act. So, the regulators are also collaborating with organisations which have different methods of influencing the workforce. For example, the General Medical Council has been working with NHS Education for Scotland and the Royal College of Physicians and Surgeons of Glasgow to support doctors’ professional development.

And just as multi-disciplinary teams are being adopted in clinical settings, there is also growing recognition of the value of inter-professional learning. Historically, professionals have trained and worked in silos, learning and sharing insights mainly within their own profession. But there is evidence that learning as a team creates shared values and an aligned approach to safety and quality.

Some professional regulators have adopted this thinking and changed their processes. The Health and Care Professions Council has made inter-professional education a requirement within their standards of education and training and we expect others to follow.

What are the alternatives to regulation? 

There are over 30 regulated occupations, but not all regulated occupations pose an equal risk. It may be possible for lower risk occupations to be appropriately assured by means other than statutory regulation. In fact, the recent government consultation asked the question, ‘Do you agree that the current statutorily regulated professions should be subject to a reassessment to determine the most appropriate level of statutory oversight?’

The Accredited Registers programme

There are other means of assuring that healthcare practitioners are suitable to practise. One is assured registration which is widely available to practitioners whose occupations are not governed by statute. 

These practitioners can voluntarily join a register if they comply with its standards. The Authority set up the Accredited Registers programme following legislation enacted in the Health and Social Care Act 2012. Currently, 25 voluntary registers, representing 85,000 practitioners are accredited by us. This means that the organisation which holds the register has met demanding standards set by the Authority in several areas, including: 

• protecting the public
• complaints handling
• governance
• setting standards for registrants
• education and training
• managing the register.

Employer checks

Employers have tools at their disposal like checking the credentials of job applicants. They should also conduct employee appraisals to assess current performance levels.

What’s crucial is that the level of assurance used to make sure someone is suitable for practice should correspond to the level of risk inherent in their practice, as shown in this diagram.

A final word…

In these two blogs, we have only just scratched the surface of professional healthcare regulation and the issues which surround it. From the outside, regulation can appear a small and uninteresting world. However, much like the Tardis, it is bigger and more complex on the inside than it might first appear.

In upcoming blogs we’ll burrow deeply into the furthest corners of regulation. In our next blog, we’ll expand on a topic which has hit the headlines recently - why does regulation need to be reformed?

Related material

Read more about this subject:

• A summary of our thinking on how fitness to practise could be reformed
• Right-touch reform 2017 
• The Authority's response to the the government consultation 'Promoting professionalism, reforming regulation'

When we hear the word ‘regulation’ we probably think it is something removed from our daily lives. Or we may think of it as something which stops us from doing something we want to do. It conjures up associations with ‘red tape’, but where would we be without it, especially in the context of health and care? 

Without even realising it, we come into contact with regulated professionals all the time (solicitors, architects, veterinary nurses to name just a few). When we visit doctors or dentists for our regular check-ups we probably don’t give much thought about who regulates them and makes sure that they continue to be fit to treat us. How many of us are likely to search regulators’ registers to check credentials? (Or even know that there is such a thing as a regulator’s register?) Very few of us probably – unless something goes wrong. We take it for granted that those treating us have the right qualifications. 

However, if we do decide to delve deeper into the regulation of healthcare professionals in the UK, we might find it difficult to navigate our way through this complex system. We are not alone. Soon after becoming US president, Donald Trump remarked, ‘Nobody knew healthcare could be so complicated.’ Healthcare systems across the world are complicated, and healthcare regulation in the UK is no different.
 
This two-part blog will explore and explain one small part of the UK healthcare system: the regulation of professionals (or ‘professional regulation’). We’ll provide an overview on how many practitioners are regulated, who regulates them and some of the differences between those regulators. Part two of this blog will discuss some of the challenges regulators are facing as well as look at alternatives to statutory regulation.

What is professional regulation? 

Ask yourself: how do I know my doctor is up-to-date with all the latest developments in medicine? Who makes sure that the optician carrying out my eyesight tests knows what they are doing? Who sets the standards and codes of practice that healthcare professionals need to follow? The answer: the 10 statutory UK health and care regulators.

Regulation is simply a way to make sure that healthcare professionals are safe to practise and remain safe to practise throughout their career, but it is far from simple itself. It is designed to protect us by limiting the risks we may face when receiving treatment. In UK healthcare, regulation does not just apply to people but also touches many areas, from hospitals to equipment to medicines. 

There are different ways to ensure that healthcare workers are suitable to provide care. One of these is statutory regulation, often simply referred to as ‘regulation’. This is implemented by the law. 

Why do we have regulation?

Regulating health and care professionals is designed to limit the risk of harm occurring to us when we receive treatment or care. Of course, it cannot fully eradicate the risk of harm. The regulators have one main objective and that is to protect the public. This can be broken down into three broad goals:

• protecting the public
• maintaining public confidence in the profession and/or
• declaring and upholding professional standards.

Of the three goals, the second is arguably the most elusive. The public is a large and diverse group meaning gauging public confidence in a profession can be a tricky task.

Who is regulated and who decides who is regulated? 

Why is a hearing aid dispenser regulated, but an audiologist (hearing therapist) not? Why is an arts therapist regulated, but a play therapist not?

This is not an easy question to answer – professional regulation has evolved over centuries, some regulated professions have grown out of medieval guilds, whereas others have been regulated where a new profession emerges, and a risk associated with it is identified.

However, if you glance at the complete list of regulated professionals you may struggle to see any rhyme or reason behind it. Under current statutory healthcare regulation, there are 32 regulated occupations ranging from doctors, dentists and nurses to pharmacists, opticians and osteopaths. To work in any of these 32 professions, professionals must be registered with the appropriate regulator. The government is responsible for deciding which occupations are regulated.

Who are the regulators and what do they do? 

When you asked: ‘How do I know my doctor is up-to-date with all the latest developments in medicine?’ The answer would be: ‘By checking the General Medical Council’s register’. The regulators have four main functions to ensure that those they register are fit to treat us. They do this by: 

• setting standards of competence and conduct which health and care professionals must meet in order to register and practise, this includes updating and/or producing new guidance (for example, 10 years ago professional behaviour on social media would not have been something regulators would need to cover)
• checking the quality of education and training courses to make sure they give students the skills and knowledge to practise safely and competently
• maintaining a register of professionals which everyone (including the public) can search, but also making sure that the professionals on their registers remain fit to practise. After all a doctor or dentist could pass their exams, start practising and never look at another textbook again. However, regulators are there to make sure that this does not happen. They have various systems in place to gather evidence that their registrants continue to develop professionally and keep up-to-date with developments in their chosen field
• investigate complaints about people on their register and decide if they should be:
  • allowed to continue to practise (also known as being fit to practise)
  • allowed to continue to practise but with conditions on how they should work (for example, attending a training course)
  • suspended from practising
  • struck off the register (also known as ‘erasure’), either because of problems with their conduct or their competence. 

    This process is commonly known as fitness to practise.

In addition to these functions, some regulators will have other responsibilities. For example, the General Pharmaceutical Council also registers and inspects pharmacies.

How similar are the regulators?

There are similarities and differences. As mentioned above they all have the same basic core functions and they are all directly accountable to the Parliaments that hold their legislation. However, the number of registrants each regulator is responsible for varies greatly. For example, the Nursing and Midwifery Council has the largest register with over 690,000 nurses and midwives, whilst the Pharmaceutical Society of Northern Ireland registers 2,470 pharmacists and 548 pharmacies.

Some regulators like the General Chiropractic Council regulate one profession each, whilst the Health and Care Professions Council registers 16 different professions. There are also differences between regulators in their registration fees and fitness to practise processes. Meanwhile, the General Optical Council is the only regulator to register students. These are just a few of the differences. Many differences between regulators are caused by their disjointed legislation, whilst others may be rooted in the different environments in which the professionals work.

Who regulates the regulators?

All nine regulators are overseen by us – the Professional Standards Authority for Health and Social Care. We are sometimes referred to as a ‘super-regulator’ or a ‘health watchdog’. We have a set of Standards called the Standards of Good Regulation. They cover the four core functions of the regulators. Every year we assess how the regulators are performing against these Standards. As part of our review we conduct audits and investigations. The result of this is an individual performance review for each regulator. We also report the results of these reviews to Parliament in one over-arching report, usually published in June.

In addition to reviewing how they are meeting the Standards, we check all of the regulators’ final fitness to practise decisions. Where we consider that the decision they reached, and the sanctions they imposed, were insufficient to protect the public, we can appeal to the courts.

We hope this whistle-stop tour around professional healthcare regulation has helped to explain, inform and educate. In part two, we look in at the role of regulation in wider healthcare at a time when there is increasing patient demand and many workforce pressures. We will also take a look at the challenges the regulators are facing and ask what alternatives are there to statutory regulation?

Related content

Watch this short video to find out more about which health and care professionals are regulated.