Health professional regulation reforms could be a missed opportunity

Published: 8 Apr 2021

The Government has opened a public consultation on its proposals to ‘modernise’ health professional regulation ( the roles of the GMC, NMC etc) in a document called Regulating health professionals, protecting the public.

AvMA welcomes the consultation but has some serious concerns about the lack of attention to the ‘protecting the public’ aspect. These proposals are long awaited and whilst most are welcome, the package of reform is most remarkable for what is not included. On the plus side the proposal to drop the controversial ‘five year rule’ which prevented the GMC and some other regulators from taking action when the incidents in question occurred more than five years ago is very welcome indeed. AvMA has long campaigned for this. More flexibility for regulators to deal with fitness to practise cases and to develop their own rules and procedures is also welcome in principle.

However, there are serious gaps in the proposals which would mean that the public are less well protected from health professionals who may not be fit to practise than now. We encourage anyone with an interest in this to respond to the consultation, which closes on 15th June. Key issues to consider:

• Whilst allowing regulators to operate an ‘accepted outcomes’ process for dealing with concerns about professionals as an alternative to fitness to practise panel hearings is potentially better for everyone, there are not enough protections built into the proposals as they stand. For example the Professional Standards Authority (PSA) will not have the power to challenge decisions made as part of this process. Given that it is accepted as necessary for them to be able to challenge fitness to practise panel decisions, it is illogical for them to have the power to do so in these cases where there are likely to me many more cases in this process than panel decisions, and the risk of them being got wrong is greater.
• People who raise concerns are not given any rights under the proposals to appeal decisions not to investigate or ‘accepted outcomes’ decisions. They may request a review by the regulator, but the regulator is not put under any requirement to review its original decision and there is no right of appeal if the regulator does not change its original decision. As above, the PSA should have the power to challenge in these circumstances. Also, people who raise concerns should be able to appeal to the PSA to do so if a review by the regulator appears irrational or leaves patients at risk. Regulators should be required by the regulations to conduct reviews of decisions when requested to do so.
• In spite of previous reviews of health professional regulation recommending that independent advice be provided for members of the public considering raising fitness to practice concerns and those in the process of raising concerns, there is no mention of this in the proposals. Whereas it is accepted that patients making a complaint about the NHS need independent advice and/or advocacy and this is funded, there is absolutely no funding at all made available for the provision of specialist independent advice where health professionals may pose a risk to patient safety. This means, that people continue to raise concerns inappropriately to regulators when they should be dealt with by other processes, and that there is more likelihood of a dangerous health professional slipping through the net. The fitness to practise procedures are complex for a lay person to deal with and the average person needs specialist advice to deal with them. This is even more important in the context of the PSA not having powers to challenge ‘accepted outcomes’ decisions and the reliance on regulators reviewing their own decisions. Independent advice for members of the public should be funded, potentially as part of a holistic advice service supporting people who have been affected by avoidable harm.

AvMA chief executive Peter Walsh said:

“We have waited a long time for reform of health professional regulation, but this risks being missed opportunity to bring about the changes that are really necessary to protect the public. It would perpetuate the situation where regulators are generally a rule to themselves. The PSA needs more not less powers to challenge regulators’ decisions. Patients and the public need to be empowered through specialist independent advice and having a right of appeal to the PSA over decisions that could leave the public at risk.”