FAQs on the government's consultation on reforming regulation

A. Accepted outcomes are a new way of dealing with concerns raised about healthcare professionals.

Instead of the majority of cases being sent to a public hearing in front of a fitness to practise panel, case examiners, working for the regulator will be allowed to agree an outcome with the professional, as long as the professional agrees with the facts and the proposed sanction.

A. We are not concerned about using accepted outcomes to settle cases where this is appropriate. We think that any method for reducing the stress and length of fitness to practise procedures benefits all those involved and we support much of what the government is proposing in the consultation. What concerns us is any potential to reduce public protection and take a step back in the progress made over the last 20 years.

We are particularly concerned that the consultation contains no proposals for any kind of independent oversight of decisions made using the 'accepted outcomes' approach. 

We currently use our section 29 powers to check and appeal final fitness to practise decisions made by a panel. If we consider a decision is insufficient to protect the public, we can appeal it. (See case studies of our section 29 power in practice and the types of cases we appeal.)

The consultation is proposing that this power will not be extended to decisions agreed using ‘accepted outcomes’. This removes the safety net our section 29 power currently provides.

The consultation proposes that the power to review these cases would sit with the regulator. We believe this is risky. It would make the regulator not only investigator, prosecutor, and judge, but also appeal court – a return to the system of 20 years ago which was widely criticised. This concentration of powers could mean that mistakes are not spotted or challenged.

A. Government is proposing to allow anyone to appeal to the regulator if they don’t agree with a decision under a mechanism called the ‘Registrar Review’. Reviews will only be able to be requested in very specific circumstances. If a review is granted, then the regulator will send a case to be re-heard by a fitness to practise panel. 

There are a number of reasons why we don’t think the Registrar Review is good enough, but the main ones are:

1. The Registrar who will review cases is employed by the regulator – this effectively puts the regulator in the position of reviewing its own decisions.
2. Reviews can only be requested for very limited reasons which do not match the current test of whether a decision is ‘sufficient to protect the public’ – this will mean that some unsafe decisions won’t be addressed.
3. In practice requesting a review is likely to fall more heavily on patients and service users, the people who regulation is meant to serve.

A. There are a few reasons why this would be difficult, but the main issue is that the power isn’t designed for a public body like the PSA to use in this way. It would be expensive and ultimately not as effective as our existing appeal powers.  

Expecting the PSA to continue to carry out its public protection role by using the Registrar Review process is a bit like asking the Care Quality Commission to regulate hospitals by raising its concerns through an NHS Trusts’ complaints service.

If Government wants the PSA to continue to provide a safety net for cases where the regulator gets it wrong, then it should give us the powers to do so. 

A. Accepted outcomes could be a positive step, speeding up the process and reducing the burdens on complainants, witnesses, and healthcare professionals. However, not ensuring independent oversight of these cases could lead to some poor decisions not being challenged.  

The government’s alternative to oversight by the PSA could also shift the burden onto patients and service users to request a review of a case.

Without access to detailed information about the case (that the PSA currently has access to under its power to appeal panel decisions) it will be much more difficult to identify which decisions are unsafe.

A. Panel hearings can be stressful and time-consuming for all involved. A move to accepted outcomes could speed up the process and reduce the burden on all involved in the fitness to practise process including registrants.

However, the current PSA oversight of panel decisions helps to promote good quality decision-making by regulator panels including ensuring minimum levels of transparency and clarity which benefits everyone.  

Under the accepted outcomes model decisions will be made behind closed doors by case examiners who are employed by the regulator rather than by a panel. Removal of independent oversight of this process could therefore be bad for registrants as well as patients and service users. 

A. We understand why regulators are keen to have more flexible fitness to practice powers. Panel hearings are costly and time-consuming as well as being stressful for all involved. Accepted outcomes could improve things and leave regulators with more time and resource to support the majority of registrants who never come near the fitness to practise process.

However, PSA oversight would have little impact on regulators but would fulfil an important public protection function now as it does for panel decisions. There will be no difference between the kinds of cases that can be dealt with via accepted outcomes or by panels therefore there is no logic in having different routes of appeal.

The alternative proposed in the form of the Registrar Review could also end up being less predictable and more complex for regulators as well as those requesting reviews.    

The consultation states that ‘any person(s)’ can request a review. There is currently no information about how many such requests would be received. Even if they did not meet the grounds set out in the consultation, time would still be needed to review and respond to the member of the public asking for the review.

The Authority uses its powers of appeal rarely and we have to meet a high bar before taking them forward. We will often feedback learning points instead helping to improve the fitness to practise process. We are also independent so have no vested interest.

A. Yes we believe there is a simple solution: using the safety net of the Authority’s section 29 powers to challenge decisions in the courts for accepted outcomes. Our section 29 powers are tried and tested. Applying them to accepted outcomes under the new model would:

• give us the flexibility to appeal as few or as many cases as are needed to protect the public cost no more than what is in place now
• increase transparency, accountability and public protection
• be simple to bring into law
• be consistent with the Government’s objectives for reform.

This would redress the balance and protect the public. Find out more in our short report Three things to get right for public protection - government consultation on reforming regulation

A. Grounds for action or ‘grounds for impairment’ (as they are sometimes known) describe the circumstances in which regulators can take action against a healthcare professional to protect the public as part of their fitness to practise process.

This means that when a concern is raised about a professional the regulator, it must ultimately fit under one or more of the grounds.

Although there is some variation across the regulators, broadly speaking the current grounds for action are:

• Misconduct
• Lack of competence/deficient professional performance 
• A criminal conviction
• Adverse mental or physical health
• Not having the necessary knowledge of English
• A decision by another regulatory body.

If a regulator decides that a concern is likely to fit under one of these headings, then they can take forward an investigation which may ultimately result in a sanction against the professional in order to protect the public.

Sanctions range from a warning, or conditions on the individual’s practice through to suspension or removal from the register if necessary.

A. Current Government proposals will reduce the grounds for action to just two:

1.  misconduct; and
2. lack of competence.

This will mean that if regulators want to take action then they will have to ensure that the issue in question fits under one of these two headings. 

A. Grounds for action are intended to describe the types of case that the regulators can take forward through the fitness to practise process. If the headings don’t correctly describe the circumstances in which regulators may need to take action, then this may make it more difficult for them to protect the public.

This is particularly true in cases of poor health. If a professional has a health condition that isn’t being managed properly, or where the risk of a relapse is high, then they may pose a risk to patients. However, if they haven’t yet caused any harm then it may be difficult for a regulator to prove lack of competence.

In addition, if they do try to take action in this way this may increase the stigma for those with a health condition to be labelled incompetent, and may even be discriminatory.

A. Health issues are already dealt with in a slightly different way to other types of cases. Regulators recognise that professionals need support in such circumstances even when there is a need to take action to protect patients. In general, feedback from professional bodies suggests that health cases are dealt with sensitively and appropriately at the moment. 

However, in order to take any action, even to require a professional to undergo treatment or seek support regulators need to have the powers to do so. 

The consultation proposes giving regulators administrative powers to remove registrants for health reasons outside of the fitness to practise process. However, we know that having parallel processes like this causes unnecessary complications and perceptions of unfairness if different processes produce different outcomes.

There may also be public protection risks if cases are sent down the wrong route and concerns are not fully explored and regulators are delayed or prevented from taking action on concerns where the public may be at risk.

A. Professional regulators are established in law. These different pieces of legislation lay out the broad duties, powers and responsibilities of each regulator.  An example is the Medical Act which underpins the General Medical Council’s operations. 

Rules are the framework that sits beneath the legislation and outlines the detail of how regulators operate their different processes. At the moment, changes to regulator legislation have to go through Parliament and changes to regulator rules have to be approved by the Privy Council.

The Privy Council is effectively a committee of senior Parliamentarians whose role it is to advise the Head of State or approve certain ‘Orders of Council’ including rule changes for particular organisations.

 A. The proposed reforms will move much of the detail that is currently in law into regulator rules. The intention is to give regulators much greater flexibility in making changes to their operating processes as rule changes don’t need to be approved by Parliament.

In addition, the checks that are currently carried out on rule changes by the Privy Council would be removed and instead the regulators would sign of their own rules.

A. We know that getting rule changes approved through the Privy Council can be a time-consuming process and we support the principle of greater flexibility. However, without any checks on this process we worry that this could lead to processes that are quicker and more convenient for regulators, but which don’t protect the public as well as they should.

In addition, this could lead to major differences in ways of working between regulators despite general support for greater consistency and coherence across regulation.  

There will be a requirement to consult on ‘significant changes to rules and standards’ but this will place a huge expectation and burden on patients and their representative bodies to participate in these consultations and spot any concerns.

(is there any point that having to consult will in its own way create additional time and expense but also making sure you consult everybody you need to? 

A. The last time the laws relating to professional regulation were reviewed in 2014 the Law Commissions recommended a specific role for the PSA to check that rulemaking was being done properly.

We think that a proportionate power for the PSA to check how rules are being made would help to prevent the creation of unsafe rules and greater inconsistency whilst still allowing the regulators to be more agile and make changes to their processes more quickly than they can now. 

Find out more in our short report Three things to get right for public protection - government consultation on reforming regulation