2014 Accountability hearing with the Health and Care Professions Council - Health Committee Contents

4  Proposed regulation of other professions

Herbal medicine practitioners and non-medical public health specialists

56.  The HCPC has been asked by Government to add professions to its register at various points since its establishment, most recently social workers in 2012. The Government has also proposed that the HCPC should in future become responsible for regulating herbal medicine practitioners and non-medical public health specialists.[61]

57.  The HCPC provided the following update of recent developments on plans to regulate herbal medicine practitioners.

    The late Professor Michael Pitilo published his Report to Ministers from the Department of Health Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practiced in the UK in 2008. It concluded: "We are firmly of the view that, in the interest of public safety, statutory regulation should now proceed with all possible speed" (p.10). The Government published a public consultation in 2009. On February 16 2011, the Secretary of State for Health, announced that the Government would introduce statutory regulation, and that this would be in place by April 2012.

    On 9 July 2013, in a Westminster Hall debate on herbal medicine, the Parliamentary Under Secretary of State for Health announced the intention to set up a working group. The first meeting of the Herbal Practitioners and Medicines Working Group is scheduled to meet in early 2014.[62]

58.  With regard to non-medical public health specialists, the HCPC report that they are working with the Department of Health, but awaiting legislation in this area:

59.  We have been working with the Department of Health on their project to deliver this policy. Our understanding is that the Department of Health currently intends to legislate in this parliament to regulate this group (as part of wider reforms arising from the Law Commissions' review of the regulators' legislation), with a register opening in autumn/ winter 2015. However, these timescales are out of our control and may change.[63]

60.  The Committee received written evidence from the UK Public Health Register, which currently runs a voluntary register for public health professionals who do not have a background in medicine or dentistry. This group includes some nurses, pharmacists, environmental health officers and others who are not regulated elsewhere. The UK Public Health Register states:

    The lack of engagement of the HCPC with existing regulators has raised concerns over the capacity of the HCPC to deliver a comparable regulatory system to ensure consistence of regulation across the entire public health profession including Medical and Dental Public Health Consultants.[64]

61.  The UK Public Health Register raise some specific concerns about the regulation of public health specialists:

    The public health specialists may be differentiated from most of the other professionals regulated by HCPC because the focus for public health is on population-based interventions. The knowledge, skills, competences and professional liabilities associated with population-based occupations are very different and, UKPHR would argue, require specialised competence on the part of the regulator. Public health specialists who face the prospect of regulation by HCPC might reasonably ask:

    ·  Will HCPC expect these leaders in public health to fit in with HCPC's existing approach to regulation which inevitably, given the large number of registrants, involves more of a "tick box" process?

    ·  How will HCPC take account of the role of public health specialists, carrying responsibility at a strategic level for protecting and enhancing the public's health, in differentiating an existing approach based largely on the regulation of practitioners who work individually with clients?

    ·  When will HCPC commence consultation with UKPHR in particular and the wider public health community as a whole to address the many complex issues that will arise on a change of regulator?[65]

62.  Marc Seale told the Committee that 'aspirant' groups may become frustrated with a perceived lack of action from the HCPC, but that the HCPC cannot invest resources into preparing for new groups to join their register until the Government publishes draft legislation:

    [It] is at certain times slightly frustrating for the aspirant groups, because until we see the draft legislation it is not appropriate for us to put significant resources into that project. So we will participate. We will give our advice but we won't start, for example, changing our IT systems. As soon as the Government makes the decision and publishes the draft legislation, we hit the go button. I know there are groups out there who are frustrated because they see us as not doing anything, but until we get the go-ahead from the Government we really cannot put large amounts of resources into that.[66]

    There is something called a section 60, which says which is the voluntary register that is going to come across. It requires us to set a standard of proficiency for the profession. It also requires us to set the standards of education and training. We set up a working group, because we do not have that knowledge. Off we go, and usually within a year or 18 months, we are ready to open a register. However, we cannot do that until the Government publish their legislation. The history of new groups is that there is a commitment to regulate new groups, then nothing happens. If we had started doing that, we would have wasted a huge amount of resources; we can't do it.[67]

Statutory regulation of other new groups

63.  The Health and Social Work Professions Order 2001 states that the HCPC may make recommendations to the Secretary of State and the Scottish Ministers concerning any profession which in its opinion should be regulated. Since 2003, the HCPC has recommended that 11 different professions should be regulated.[68] Of these, only operating department practitioners (2004) and practitioner psychologists (2009) have become regulated by the HCPC.

64.  On 16 February 2011, the Government published a command paper, Enabling Excellence Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers, which set out the coalition government's policy on professional regulation:

    Rather than a single statutory approach regardless of local needs and local approaches, quality assured voluntary registration will provide greater flexibility and give the public and local employers greater control and responsibility for how they assure themselves about the quality of staff. For the overwhelming majority of occupational and professional groups which are not currently subject to statutory regulation and which are generally not considered to present a high level of risk to the public, but where recommendations that regulation should be introduced have been made (including those groups recommended by the HPC for statutory regulation in the past, but not yet registered), the assumption will be that assured voluntary registration would be the preferred option.

    The extension of statutory regulation to currently unregulated professional or occupational groups, such as some groups in the healthcare science workforce, will only be considered where there is a compelling case on the basis of a public safety risk and where assured voluntary registers are not considered sufficient to manage this risk.

    The exception to this is practitioners of herbal medicine, including Chinese herbal medicine. [69]

65.  The Committee has received written evidence from the Registration Council for Clinical Physiologists, arguing strongly that Clinical Physiologists should be subject to statutory regulation:

    Clinical physiologists work directly with patients, performing sensitive procedures such as assessments and adjustments of pacemakers, lung function tests, and both assessing and diagnosing and treating hearing loss. These can be invasive procedures, including internal ultrasound and endoscopies. Doctors and surgeons then act on the basis of the diagnosis by clinical physiologist, which can include surgeries such as neurosurgery in the treatment of epilepsy. All of these procedures pose serious risks to patients if not carried out with the highest professional standards.

    Despite the sensitive and risky nature of the procedures they undertake, clinical physiologists are not subject to statutory regulation in the same way as doctors or nurses-or even professionals such as art therapists. Indeed, even though professionals responsible for dispensing hearing aids on the high street are statutorily regulated, clinical physiologists working in NHS audiology services, prescribing and fitting devices to both patients of all ages, are not.

    Many of the procedures performed by clinical physiologists in the UK are performed by statutorily regulated professionals in much of Western Europe, such as doctors, and by clinicians in the United States. As a result of a specifically trained workforce, treatment and diagnosis can be provided more cost effectively by clinical physiologists in the UK, while at the same time freeing up doctors to deal with other patients. This is already happening in some areas but further developments could only take place if concerns around patient safety can be addressed through a robust system of regulation.

    Clinical physiology is an increasingly specialised and advanced profession with a large number of dedicated professionals working primarily in an NHS hospital setting. In the UK, there are more than 5,000 clinical physiologists, they form part of the wider Healthcare Science workforce that includes other statutory professions such as Biomedical Scientists. Together, they carry out around 80% of diagnostic procedures in healthcare.[70]

66.  They argue that the "large number of unregulated or voluntary regulated healthcare professions in the NHS ... risks undermining public confidence in regulators", as "patients generally assume that the professionals they see in a hospital setting as an integral part of the patient care pathway are regulated like doctors and nurses are."[71]

67.  In the RCCP's view, Accredited Voluntary Registration is not an appropriate alternative to statutory regulation:

    From RCCP's experience, it is not an alternative that is fit for patient safeguarding. As a voluntary register, the powers of the RCCP are severely curbed-from being unable to compel employers who contact RCCP with concerns about a registrant to give evidence to the point where the register's administrators have themselves faced civil legal action for 'defaming' incompetent practitioners that they have attempted to bring sanctions against.

    In practice this means that while RCCP operates a disciplinary code and procedure, it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise, as it currently has no powers of enforcement. Since 2001 the RCCP have received ten complaints that have moved to the investigatory hearing stage. In all ten cases the respondents have failed to respond and subsequently have failed to renew their membership thus removing themselves from the process. These practitioners then have the opportunity to start again in a new NHS trust or private facility, helped by a lack of awareness among NHS organisations of the voluntarily registers and the legal grey area of making membership of a voluntary registry a mandatory requirement for employment.[72]

68.  We discussed the issue of statutory regulation for further professional groups in our oral evidence session. Regarding clinical physiologists, the HCPC was clear in its support for their statutory regulation.[73]

69.  Discussing the issues relating to introducing statutory regulation more broadly, Dr van der Gaag observed that health and care regulation is currently "not a very logical landscape", and went on to say that "if you had a clean piece of paper and redesigned the system, you would do it very differently". However, she acknowledged the need for a pragmatic approach: "you have what you have and, in a sense, we have to move forward."[74]

70.  Marc Seale argued that "regulation is a huge badge of respectability, professionalism and endorsement."[75] The Committee asked the HCPC where, in their view, the line should be drawn on extending statutory regulation to other professions. The HCPC reported that over a number of years they had received inquiries from 53 different professions asking to be brought into statutory regulation.[76] They stated, however, that in their view, beyond the groups they have recommended should be subject to statutory regulation, "there are not another 30 or 40 groups out there ready to be brought into the system." [77]

71.  Considering the wider issue of on what basis decisions about which professions should have statutory regulation should be made, Anna van der Gaag made the following observations:

    Clearly, this debate has been going on for some time. Where do you stop? It is a very good question. In a sense, as health care evolves, regulation has to respond and make decisions based primarily on public safety and protection, and it must be driven by that. There are strong and opposing views about the nature of evidence, the credibility of evidence and the evidence base of different types of professional practice ... there are certainly lots of highly contested views about the nature of evidence. We are aware of that, and to some extent that is an important driver, but it is not the primary driver for us on decisions about regulation, because the primary driver is public safety. All professions have gaps in their evidence base. I think that doctors would see that there are gaps in their evidence base, and the allied health professions would certainly say the same.[78]

72.  The HCPC has a record of assimilating new professional groups onto its register, and most recently the Government has suggested that herbal medicine practitioners and non-medical public health specialists should be added. Members of 'aspirant' groups such as these may experience frustration owing to delays and uncertainty, as the HCPC has reported to us that it is unable to commit resources to developing its approach to potential new groups until the Government has introduced legislation. The UK Public Health Register has raised a number of concerns relating to the proposed regulation of non-medical public health specialists. We recommend that the HCPC engages directly with the UK Public Health Register to ensure its concerns are registered.

73.  In addition to this, since 2003, the HCPC has recommended to Government that statutory regulation be extended to eleven other professions. Of these, the only group to receive statutory regulation to date are operating department practitioners and practitioner psychologists. Statutory regulation gives professions, in the words of the HCPC, "a huge badge of respectability, professionalism and endorsement." Decisions about whether to extend statutory regulation to different professions need to be informed both by considerations of issues of patient safety, and consideration of the evidence base for that profession. We do not seek to make judgements on either of these factors for individual professions, and, although as the HCPC has pointed out that health and care regulation is not currently "a very logical landscape", at this stage we are not seeking to make recommendations for change simply to address inconsistencies. However, if there are unregulated groups which need to be regulated on the grounds of patient safety, this should be dealt with swiftly.

74.  We received written evidence from the Registration Council of Clinical Physiologists arguing strongly that Clinical Physiologists should be subject to statutory regulation, a position that the HCPC agreed with. We recommend that, in responding to this report, the HCPC lists any professional groups for which they feel there is a compelling patient safety case for statutory regulation so that we can take this further with the Department of Health as a matter of urgency. We are concerned at the length of time it can take for professional groups to gain statutory regulation. As we understand that new groups can be added to the HCPC's register by means of secondary legislation we see no reason why there should be undue delay in extending statutory regulation to professional groups where there is a compelling patient safety case for doing so.

61   HCPC (HCP 0001), para 3.13 Back

62   HCPC supplementary evidence (HCP 0012), p3 Back

63   HCPC supplementary evidence (HCP 0012), p3


64   UK Public Health Register, (HCP 007) p1 Back

65   UK Public Health Register, (HCP 007) , para 10 Back

66   Q37 Back

67   Q47 Back

68   HCPC website, new professions process page

69   HCPC supplementary evidence (HCP 0012), p2  Back

70   Registration Council for Clinical Physiologists (HCP0005), para 3.2 - 3.5 Back

71   Registration Council for Clinical Physiologists (HCP0005), para 2.3 Back

72   Registration Council for Clinical Physiologists (HCP0005),, para 2.4 - 2.6 Back

73   Q49 Back

74   Q36 Back

75   Q56 Back

76   Q51 Back

77   Q50 Back

78   Q50 Back

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Prepared 18 June 2014