Health and Care Bill

Written evidence submitted by the Professional Standards Authority for Health and Social Care (HCB30)

Health and Care Bill – Public Bill Committee

1. Introduction

 

1.1 The Professional Standards Authority for Health and Social Care is the oversight body for the ten health and care professional regulators including the General Medical Council, the Nursing and Midwifery Council, the Health and Care Professions Council and Social Work England. The Authority currently has four key functions:

· driving improvements in the ten statutory regulators in health and social care by undertaking annual reviews of effectiveness

· providing a safety net for any fitness to practise decisions that are insufficient to protect the public

· raising standards in health and social care professionals in non-statutory roles through our Accredited Registers programme

· using research and policy development to improve regulation and registration to better protect patients, service users and the public.

2. Summary

 

2.1 Our comments on the Health and Care Bill are primarily focussed on Part 5 (Section 123) of the Bill which propose additional powers for the Secretary of State relating to health professional regulation. Proposals of specific relevance to health and care professional regulation include plans to give the Secretary of State powers to:

· abolish an individual health and care professional regulator

· to remove a profession from regulation.

2.2 The Authority has previously called for radical reforms to healthcare professional regulation including consideration of a single assurance body for health and care professionals and a common professional code as well as a risk-based approach to deciding which occupations are regulated. [1]

2.3 We support simplification of the system and welcome the signal from the Government that it intends to consider the number of professional regulators. However we believe that reconfiguration needs to prioritise patient safety and seek to bring regulation more in line with the way that care is delivered. We also believe there should be appropriate safeguards built into any exercise of such powers.

2.4 We have also provided some comments on Part 1 (Section 37) which proposes powers of direction for NHS England and Part 4 of the Bill (proposals to put the Healthcare Safety Investigations Branch on a statutory footing).

3. Proposals relating to health professional regulation

 

3.1 Our comments in this section relate primarily to proposals in Part 5, Section 123 of the Health and Care Bill to make changes to section 60 and Schedule 3 of the Health Act 1999 and provide the Secretary of State for Health and Social Care with powers to:

· abolish an individual health and care regulator

· remove a profession from regulation if regulation is not required for protection of the public.

3.2 We note the ongoing review of the regulatory landscape by KPMG commissioned by the Department for Health and Social Care (DHSC) and referenced in the recent public consultation. [2] This will provide options for the exercise of the powers for the Secretary of State to abolish regulators. The consultation also reference plans to review the professions that are currently regulated in the UK, to consider whether statutory regulation remains appropriate for these professions.

Powers for the Secretary of State to abolish an individual health and care regulator

3.3 We welcome the signal from the Government that it intends to consider the number of professional regulators as this could lead to simplification and address some of the problems that arise from the current complexity.  

3.4 There are currently ten regulators under the Authority’s oversight including seven with a UK wide remit [3] and three covering different parts of the UK [4] . There are also the devolved social care regulators for Scotland, Wales and Northern Ireland which fall outside of our oversight. [5]

3.5 The Authority has previously proposed a single assurance body for health and care professionals as well as a single statement of professional practice or common code across professions. [6] We also carried out work for the Department of Health in 2012 looking at cost effectiveness and efficiency of the healthcare professional regulators looking at the gains that could be made from potential mergers or sharing of functions. [7]

3.6 We continue to support simplification of the regulatory system and we know that many stakeholders agree with this position. The complexity of the current framework:

· increases the likelihood of failures in public protection resulting from the existence of boundaries between regulators that necessarily create barriers, even when cooperation is maximised

· generally makes it practically difficult for professional regulation as a whole to work with other parts of the system (e.g. CQC has to have MoUs with GDC, GMC, GPhC, NMC, and HCPC)

· makes the whole system harder to navigate for patients, employers, and anyone else who wants to make a complaint about a professional

· creates barriers to inter-professional learning and working

· lacks the agility to support the development of new roles

· creates barriers to innovation by creating monopolies that align with protectionist goals

· increases the likelihood of unjustifiable inconsistencies, and makes it harder for regulators to adopt common ways of working (e.g. on the development of a common code of practice)

· leads to general inefficiency and duplication of functions.

3.7 Successive public inquiries and reviews into major patient safety failings, from Kennedy [8] to Paterson [9] , have established that the lack of proper coordination and cooperation between the different parts of the patient safety landscape contribute to things going wrong.

Principles for regulator reconfiguration

3.8 It is our view that any reconfiguration should be based on robust evidence and clear principles to ensure that public protection is the primary factor taken into account, ahead of any considerations relating to cost saving and efficiency. Regulation should also reflect the fact that much care is now delivered through multi-disciplinary teams.  

3.9 We support proposals which simplify regulation, provided this is done with a view to improving public protection first, and to other factors second.

3.10 In particular, we support the Government’s stated aims for change – increased consistency and cost-effectiveness – but suggest that consideration is also given to the question of how best to combine professions (if this is a recommendation) to maximise public protection. Any simplification of the regulatory landscape in terms of the number of regulators could be based on, for example:

· mirroring the way care is delivered (our preferred option); or

· taking other common characteristics such as whether or not registrants are likely to be working in a commercial environment; or

· considering the risks of each profession and combining those requiring similar regulatory force.

3.11 We believe that it is also important to look at factors that may affect performance such as size (is there an optimum size above or below which a regulator may find it easier/harder to perform well?) and funding (is there a link between fees per registrant and performance? How would fees be set in a multi-professional regulator?) in determining any options for reconfiguration.

3.12 Taking a broader view, we would expect the review of the regulatory landscape to think about currently unregulated groups, and the place of the Accredited Registers scheme.

3.13 Any mergers would be likely to lead to a period of turbulence of three-to-five years, adding to any disruption caused by the more detailed reforms due to be rolled out on a regulator-by-regulator basis, starting with the GMC in 2021-22. The role of an oversight body may become even more important during this transition period.

3.14 In addition, the coming five years or so are likely to be turbulent for the NHS in England in particular (due to the Health and Care Bill proposals) and across the UK generally (continued strain on resources from pandemic care and dealing with pent-up demand 'post'-pandemic).

Safeguards to guide exercise of powers

3.15 Proposals to allow the Secretary of State to abolish an individual health or care professional regulator may prove controversial as this will limit the role of Parliament in these decisions, compared to the scrutiny afforded by primary legislation. If these powers are introduced, it will be important that safeguards are built in to ensure that there is appropriate consultation and consideration of key factors to ensure that any such decisions are in the public interest – noting that section 60 of the Health Act 1999 already contains requirements that legislation should be:

· published in draft

· subject to a 3-month consultation

· consulted on specifically with affected professionals and service users

· subject to consultation in Scotland by Scottish Ministers if the changes in question relate to devolved matters.

The role of the Professional Standards Authority

3.16 Although there are no changes proposed for the Authority itself under the Bill the Committee may wish to note that the KPMG review of the regulatory landscape will consider how the Authority’s role might need to evolve if there was a significant reduction in the number of regulators.

3.17 Changes to the Authority’s ‘functions, powers and duties’ can already be made under section 60 of the Health Act 1999 and it is our assumption that this is unchanged.

The Accredited Registers programme

 

3.18 In 2012, the Authority was given powers to accredit registers of health (and currently within England only, social care) roles not subject to statutory regulation. We deliver this function through our Accredited Registers programme which covers groups such as counsellors and psychotherapists, healthcare scientists and public health practitioners. [10] We would expect Government to have a place for the programme in its remodelled regulatory landscape, alongside other models of assurance.

3.19 We also made this point in in our recent public consultation on our Accredited Registers programme. [11] We encourage the Committee to consider the implications of these proposals for the health and social care regulatory landscape as a whole covering different forms and levels of assurance, including, but not limited to, statutory regulation and Accredited Registers.

Secretary of State powers to deregulate a health or care profession

3.20 We are not opposed to the Secretary of State having the powers to move different groups out of as well as into statutory regulation.  We know that the risk profiles for different occupations can shift over time and there may be merit in allowing for a more agile method of responding to increased or decreased risk of harm. 

3.21 However, as with powers to abolish regulators we believe there must be a robust, independent process to ensure that any decisions made are in the public interest and, in the case of regulation of occupations, are based on a clear assessment of the risk of harm arising from practise.  This must be based on an understanding of the overall risk profile of roles playing a key part in the system, including those that are not currently subject to statutory regulation. There may also be a need to consider any human rights implications for groups taken out of statutory regulation.

3.22 The Authority has called for a risk-based approach to deciding which professions should be statutorily regulated. We have also developed a methodology to assess the risk of harm arising from the practice of an occupation in order to establish the appropriate form of regulatory oversight required. [12]

3.23 It would be helpful for the Government to provide some clarity on how decisions to deregulate a profession would be taken on a four-country basis, and in particular with respect to Scotland which has devolved competencies relating to professional regulation. For example, there could be a difference of opinion between the UK countries about whether it was appropriate to deregulate a group.

 

3.24 The Accredited Registers programme (run by the Authority) provides a proportionate alternative to statutory regulation for lower risk health and care occupations. Registers accredited under the programme must meet standards relating to good governance, ensure their registrants have the qualifications and comply with a code of practice and have a robust complaints process in place. We would expect the Government to consider register accreditation as a route for any professions subject to deregulation, as a means of mitigating risks associated with the removal of statutory regulation safeguards. However, further support is needed from Government and wider stakeholders including employers to enable the programme to reach its potential as a proportionate alterative to statutory regulation. This includes raising recognition of the programme, and ensuring that Accredited Registers have access to appropriate safeguarding checks.  

3.25 We provided advice to Health Education England (HEE) in 2019 on a risk-based approach to oversight for sonographers using our right-touch assurance tool. [13] Following our advice, which proposed that ahead of consideration of statutory regulation existing mechanisms for voluntary registration should be strengthened, the voluntary register of sonographers has been brought under the Register of Clinical Technologists (RCT). This means there is now a register of sonographers accredited by the Authority providing employers, patients and wider stakeholders the option to select a sonographer from a register that meets clear standards.

3.26 Decisions on the regulation of different groups have in the past often been based on the desire for professional recognition or standing. Regulation, whilst an important means of protecting the public should be reserved for those groups where other mechanisms, either voluntary or employer-led, are insufficient to manage the risks arising.

3.27 The Government has previously consulted on giving the Professional Standards Authority a statutory role to advise on which health and care occupations should be regulated as part of its 2017/18 consultation on reforms to professional regulation.  A majority of those who responded agreed with this proposal and the Government response stated: ‘The UK and Devolved Governments believe that the PSA is best placed to provide independent advice on which groups of healthcare professionals should be regulated.’ [14]

3.28 We believe that there is an ongoing need for independent, expert advice to Government when making decisions of this nature. The Committee may wish to give further consideration to the question of whether the Authority should be given  this role as an additional safeguard.

Other proposals

3.29 We support the removal of restrictions on which regulatory functions may be delegated. We agree that the delegating regulator should remain accountable for the provision of functions and we suggest that regulators should be required to ensure the competence of the body they delegate to.

3.30 We do not object to the clarification of section 60 to allow regulation of other groups within health and care if appropriate. However, any such decisions should be based on a clear assessment of risk.

3.31 In the case of healthcare managers (further to the recommendation by the Kark review) there should be consideration of whether statutory regulation is the most appropriate method of managing the risks arising.

4. Other parts of the Bill

 

Changes to the Healthcare Safety Investigation Branch (HSIB)

4.1 Part 4 of the Bill is intended to put the Healthcare Safety Investigation Branch (HSIB) on statutory footing as the Health Service Safety Investigations Body (HSSIB). This includes the provision of safe space investigation powers.

4.2 The Authority supports the creation of a learning culture where staff feel able to speak up about mistakes and where improvements can be made for the benefit of all.

4.3 However, the need for learning and improvement should be balanced with  the need for appropriate accountability and for the public to be protected from unsafe practitioners. Healthcare professionals are subject to the professional duty of candour to be open and honest with patients and families when something has gone wrong (as captured in professional codes). Healthcare providers in England are subject to the statutory duty of candour as outlined in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20 and enforced by the CQC. [15]

4.4 Proposals to allow the HSSIB to investigate using ‘safe space’ investigation powers risks cutting across both the powers of the healthcare professional regulators to protect the public and the duty of candour. ‘Protected information’ gathered by HSSIB as part of an investigation will not be allowed to be disclosed apart from in very limited circumstances and neither final nor interim reports will be admissible in any criminal, civil or regulatory proceedings. We suggest the Committee consider whether any further clarity can be provided on the face of the Bill to ensure that regulators will still be able to access the information they need to protect the public and that ‘safe space’ powers will not override the professional or statutory duty of candour.

4.5 We welcome the expansion of proposals to healthcare delivered by the independent sector. It is important that there is a level playing field in relation to the rules for care delivered within the NHS and the independent sector to ensure that the public are protected wherever they access care.

Power for the Secretary of State to direct NHS England

4.6 Section 37 of the Bill includes a general power for the Secretary of State to direct NHS England/NHS Improvement. The White Paper states that the intention of these powers is to support accountability and agility and ensure the alignment of NHS England’s work with wider priorities for health and social care.

4.7 We believe these proposals present an opportunity to ensure protection for patients accessing care from the new and expanding roles set out in the NHS Long Term Plan. This includes those intended to support patient choice and increase access to personalised care, such as social prescribing link workers.

4.8 The new powers could present an opportunity for a more joined-up approach to the assurance of unregulated groups, particularly in the context of the Government’s wider review of professional regulation. For example, Ministers could require that for certain roles, the NHS in England employ practitioners from registers accredited through the government-backed programme we operate. [16]

 

4.9 Ensuring that the need for appropriate assurance is considered as part of workforce planning will ensure that there is proportionate oversight for all of the different roles that sit within multi-disciplinary teams and form part of the patient journey.

5. Further information

 

5.1 Please get in touch if you would like to discuss any aspect of this response in further detail. You can contact us at:

Professional Standards Authority for Health and Social Care

157-197 Buckingham Palace Road

London SW1W 9SP

Email: policy@professionalstandards.org.uk

Website: www.professionalstandards.org.uk

Telephone: 020 7389 8030

August 2021