Government proposals to reform the legislation under which healthcare regulators operate are now out for consultation. Our Head of Right Touch Regulation, Dr Toby Ganley, explores the key fitness to practise reforms and what they might mean.
Excessively prescriptive and outdated legislation, particularly around our fitness to practise processes, has limited the degree to which we are able to move our attention ‘upstream’, and to be more targeted, proportionate and agile, in those instances when we need to intervene.
This could begin to change now that the Department of Health and Social Care (DHSC) has published its consultation, Regulating healthcare professionals, protecting the public. The ability to write our own rules and the proposed building in of discretion into the fitness to practise process will enable us to move further towards being a right touch regulator, increasing our agility and our ability to target our interventions to risk. However, it is not a panacea.
Here, I want to explore some of the key changes that are proposed in relation to fitness to practise and what these might mean in practice.
Key proposed changes
- There will be a three stage fitness to practise process for all healthcare regulators: initial assessment, case examiner and panel.
- Case examiners will be able to offer a wide range of accepted outcomes, sooner than if cases go to a panel hearing.
- Introduction of accepted interim measures.
- The Registrar will have review powers for accepted outcomes at the case examiner stage.
- Health and English language will be treated as matters of competency, not separate grounds for alleging impaired fitness to practise.
- There will be flexibility for regulators to make rules without the need for approval by the Privy Council.
What might this mean?
The three-stage process is proposed for all healthcare regulators to achieve greater consistency in terms of how different regulators investigate concerns about the fitness to practise of healthcare professionals.
The initial assessment stage requires regulators to consider concerns raised. This is quite similar to the initial stages of our current process. However, it would also enable regulators to determine whether or not to refer those concerns on through the fitness to practise process. This would introduce a welcome element of discretion, compared with our current legislation, which obliges us to refer any information that may amount to an allegation of impaired fitness to practise to case examiners.
We would also be able to develop our own criteria for referral onward through the fitness to practise process. That should increase our ability to close cases where the issues involved are not particularly serious, before they get to case examiners.
Once a case is referred to case examiners, they would have access to the same suite of outcomes as a panel would, and these could be used, where this was agreed with the registrant. This would potentially enable faster and less adversarial conclusions to be reached, as they would not have to go before a panel.
The consultation also proposes that health and English language would no longer be grounds for an allegation of impaired fitness to practise. These issues would only be considered where they affected the registrant’s ability to practise safely i.e. as a matter of competence.
Have your say
There is, of course, a lot more detail in the consultation, and we strongly encourage everyone with an interest in dental regulation to read it and submit a response. It is really important for the DHSC to hear from those who will be most directly affected by these proposed changes.
Find out more on our Regulatory Reform 2021 webpage.