31 May 2012
General Optical Council response to the Law Commissions’ joint
consultation document ‘Regulation of health care professionals’
and ‘Regulation of social care professionals in England’
Introduction
The General Optical Council (GOC) welcomes the opportunity to respond to the joint
consultation of the Law Commission, Scottish Law Commission and Northern Ireland
Law Commission on the regulation of healthcare professionals in the UK and the
regulation of social care professionals in England.
The GOC is the regulator for the optical professions in the UK. The Council currently
registers around 25,000 optometrists, dispensing opticians, student opticians and
optical businesses.
In accordance with our legislation, the GOC sets standards for optical education and
training, performance and conduct; approves qualifications leading to registration;
maintains registers of those fit to practise, train or carry on business as optometrists
and dispensing opticians; and investigates and acts where a registrant’s fitness to
practise may be impaired. We may also take action to safeguard the public against
individuals or companies that contravene safe practice in the optical field.
Overall comments
Our approach to developing our response
We welcome this review of the statutory framework of the health and social care
professional regulators. Above all, our approach in forming our response to the
issues raised in this consultation has reflected our mission, which is to assure the
health and protection of those who use the services of optometrists and dispensing
opticians.
In developing our response, we have also been guided by the following key
principles:
seek an appropriate level of flexibility in our regulatory approach, in order to
respond to developments in the sector in a timely and effective manner;
promote consistency across regulators where appropriate, and look for
opportunities to collaborate with other regulators in setting our policies and
processes;
seek to ensure that any regulatory models that are put in place support the
principle of proportionate regulation relative to degrees of risk and harm;
ensure that any decisions we make are informed by evidence, including the
views of our stakeholders;
strengthen accountability across the nations;
seek to minimise disruption and maintain certainty for registrants and other
stakeholders wherever possible, in respect of the scope and nature of our
regulatory approaches.
Comments on the overall approach of the consultation proposals
In line with these principles, the GOC is supportive of the broad approach proposed
by the Law Commissions, of a single overarching legislative framework for
healthcare regulators.
We believe that there is value for all our stakeholders in the adoption of a clear and
consistent high-level approach across health professional regulation, in which
accountability arrangements are transparent and proportionate. We also believe that
it is important that the high-level framework provides a sufficient degree of flexibility
for different regulatory approaches to be put in place for different professional
groups, in reflection of the diversity of approaches to the provision of healthcare in
the UK and the differences in the nature and extent of risks to the public posed by
different professional groups and delivery models.
We are comfortable with the approach that the Commissions have proposed in
respect of most of the key issues around the roles and functions of the regulators.
We believe that the proposals set out in the consultation have generally found an
appropriate balance between the need for regulations to have flexibility in respect of
their regulatory approaches, and the importance of there being an appropriate
degree of clarity and consistency among regulators as to the nature, purpose and
mechanisms of health professional regulation. For the most part, the Law
Commissions’ proposals in respect of our core regulatory functions - education,
standards, registration and fitness to practise - would reinforce or enhance the
clarity, efficiency and effectiveness of our regulatory work.
A simplified, modern and flexible legislative framework could have significant
benefits in allowing regulators to respond more quickly and effectively to
developments in their sectors and beyond, and we generally welcome the enabling
approach proposed to the approval of rules proposed in the consultation. We are
aware of a number of areas in which changes to our legislation or rules would enable
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us to operate more efficiently or effectively, to take account of developments in
governmental or regulatory policy and practice, or to put in place systems and
processes that would provide more targeted or proportionate regulatory responses to
modern professional practice.
Under existing approvals processes, making changes to primary legislation is difficult
and time-consuming, and subject to a great deal of uncertainty. We therefore
welcome changes to the statutory framework that would enable regulators to
respond more quickly to developments, and improve the quality and efficiency of
their own processes.
This is particularly the case in the fitness to practise area, where we believe there
are a number of changes that could be made to our existing legislation that would
enable us to operate in a quicker, lighter-touch way. In that area, the consultation
raises the question of the separation of investigation and adjudication. This is an
issue that the GOC has previously indicated its support for - with the General
Medical Council, we were to be an initial participant in the system by which the Office
of the Health Professions Adjudicator would have independently decided on cases
regarding the fitness to practise of opticians. While that approach will no longer
proceed, we would support consideration of alternative mechanisms by which a clear
separation of investigation and adjudication can be achieved. We would support
proposals that find a means to support an appropriate level of consistency and
shared benefits across regulators in that separation of adjudication processes, and
provide clarity for patients and registrants as to how cases will be investigated and
decided upon.
Comments on governance and accountability issues
For the most part, we are comfortable with the Law Commissions’ proposals around
the ways in which regulators should be governed, overseen, and held accountable
for their work. We support the guiding principle that regulators should be given the
flexibility to organise and govern themselves as they think appropriate, and we
support the Law Commissions’ concern for the importance of clear and transparent
accountability and maintaining independence in regulation. We support providing a
clear statement of regulators’ paramount duty in protecting the public and
maintaining public confidence in the professions, by ensuring proper standards of
practice are maintained.
There are, however, some areas in which we believe additional clarity is necessary,
particularly around the nature of the regulators’ relationship with the Government and
the need for clear safeguards for regulators’ political independence. While we
recognise and support the principle that the Government has ultimate authority over
matters of great public interest and impact, including ultimately the scope of
regulation and the role and structure of the regulatory system, it is important that
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such decisions be made transparently and under clear criteria - including with
appropriate opportunities for consultation and, in the most significant areas,
parliamentary scrutiny. This also applies to decisions about direct intervention in the
work of regulators where they may be considered to be failing to perform statutory
functions or for other reasons.
On the other hand, we believe that there are areas in which government supervision
and assistance is beneficial. This is particularly in respect of the development of
changes to rules made under the legislation, where the consistency and coordinated
expertise currently provided by government lawyers is valuable. If the Department of
Health’s role is not to be maintained in this area, we believe that it should ultimately
fall to regulators to be responsible for the development and implementation of their
rules, and to be accountable for the results of those rules, although there will be
costs associated with this. We would support CHRE retaining its existing role rather
than taking on additional responsibilities for the approval of rules - it already has a
challenging role balancing several different functions and accountabilities, and this
would be complicated further if it were asked to assume a broader remit.
We believe that there are aspects of this balance between the benefits of
government supervision and the importance of regulators’ political independence
that may need to be more fully explored. Our overriding principle is that where the
Government is to have a direct oversight or intervention relationship with the
regulators, clear criteria and other safeguards should be in place. If not, there are
dangers that accountability relationships are changed to the extent that regulators
cease operating as bodies independent of both government and the professions they
regulate, and instead become effectively another arm of government itself. If
regulators are not able to speak to government, the professions and the broader
public with an independent and authoritative voice, their value will be greatly
diminished. These issues are discussed in more detail in our responses to specific
consultation questions and proposals.
Comments on student and business regulation proposals
Of particular relevance for the GOC are the questions in the consultation on the role
of regulators in respect of student professionals and of businesses. In both areas,
the GOC’s current legislation is unique in its approach among the current UK
healthcare regulators.
We are supportive of proposals that the new overarching statute should include
powers for regulators in respect of both students and businesses. We believe that
these are areas in which professional regulators can have a legitimate role to play in
support of their key public protection duty. We believe that a flexible approach is
desirable, to enable regulators to respond proportionately to developments in their
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sectors and the wider health service, while minimising the need for changes to
primary legislation in the future.
Our support for the statute including powers in these areas is not based on the fact
that the GOC has existing regulatory powers in respect of student opticians and
optical bodies corporate. In fact, in light of developments in service provision and
training in the optical sector, emerging changes in health service provision and
thinking on the role of professional regulation, we believe that the time is right for a
reassessment of the GOC’s current responsibilities and powers in respect of both
students and businesses in the optical sector.
There are already a range of regulatory roles in the sector, including those of training
providers, employers, individual professionals, commissioning bodies and other
regulatory bodies, and these dynamics change over time. In our view, the
development of new overarching legislation for the professional regulators provides
an opportunity to ensure that the GOC’s role in the overall regulatory framework is
an effective and proportionate means of protecting the public and maintaining
standards in the profession in a modern environment, and we believe that
improvements may be possible. We intend to work with our stakeholders to help
ensure that any decisions about the future structure of student or business regulation
in the optical sector are transparent, balanced, and fully informed by evidence.
Given the potential impact of changes in the regulatory framework on individual
professionals, businesses, students, training providers and the public, we believe
that the Government has an appropriate oversight role in decisions in respect of
regulatory powers with regard to students and businesses. We therefore support the
Law Commissions’ proposals that the Government be given responsibility for the
activation of student and business regulation powers for individual regulators by
means of regulations. We would encourage the Commissions to ensure that a
transparent and consistent framework and process for making those decisions is put
in place in the statute.
Comments on provisional proposals and consultation questions
Part 2: The structure of reform and accountability
Provisional proposal 2-1: All the existing governing legislation should be
repealed and a single Act of Parliament introduced which would provide the
legal framework for all the professional regulators.
Provisional proposal 2-2: The new legal framework should impose consistency
across the regulators where it is necessary in order to establish the same core
functions, guarantee certain minimum procedural requirements and establish
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certain core requirements in the public interest. But otherwise the regulators
should be given greater autonomy in the exercise of their statutory
responsibilities and to adopt their own approach to regulation in the light of
their circumstances and resources.
We support the approach set out in the above proposals 2-1 and 2-2. It is important,
however, that the new legal framework not seek consistency for its own sake. There
is a tension between the push for more consistency in approaches among the
regulators and the desire to give regulators more freedom and powers. The areas in
which consistency is sought across regulators through the overarching legislation will
need to be carefully chosen, and appropriate safeguards and opportunities for
collaboration put in place to ensure an appropriate balance is maintained in respect
of consistency and regulator flexibility.
Provisional proposal 2-3: The regulators should be given broad powers to
make or amend rules concerning the exercise of their functions and
governance without any direct oversight, including Privy Council approval and
Government scrutiny (subject to certain safeguards).
We support the proposal that regulators be given broad powers to make or amend
rules concerning the exercise of their functions and governance. We have some
reservations about the proposal that these powers be exercised without any direct
input or oversight.
For one, without oversight and/or collaboration among regulators, this flexibility could
conflict with the overall desire to promote consistency in the regulatory system. Also,
if the Department of Health is to no longer have a role in advising on the
development of rules changes, regulators will face additional risks and costs. We are
not certain that the input and expertise that is currently provided by Department of
Health lawyers in the process of drafting new rules can easily be obtained
elsewhere. Even if that expertise is available privately, there will be substantial
additional costs on regulators, and losing the Department as a central resource may
create overall inefficiencies among the regulators relative to the current system.
Finally, inadequate oversight and support could potentially lead to poorly-drafted
rules being put in place by regulators. This could create risks of rules requiring
frequent amendment to address problems, or their being subject to legal challenge.
All these issue would create additional expense and uncertainty.
We would, on balance, be supportive of the existing system for approving rules being
retained. Should Privy Council approval and the scrutiny of the Department of Health
be removed, we would support the exploration of initiatives to share expertise and
resources among regulators to help ensure the robustness of future rules. With
appropriate collaboration, we believe that regulators will ultimately be able to
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effectively manage the development of rules and hold the accountability for the
results.
Question 2-4: Would the perceived status of legal rules be less clear or certain
without Parliamentary approval? Should the CHRE be given an active role in
scrutinising new rules, or should a limited number of the rules be subject to
Secretary of State approval and contained in a statutory instrument?
We do not have any evidence that rules put in place by regulators would be less
clear or certain without Parliamentary approval. As long as the legal status of those
rules is clear from the governing legislation, we do not believe that the nature of the
approvals process should itself cause additional uncertainty without the involvement
of Parliament.
CHRE can play a valuable role in monitoring regulators’ performance, advising on
policy approaches, and supporting collaboration among regulators. However, were
CHRE to take on a role scrutinising and approving draft rules this would change its
role into an active ‘regulator of regulators’. We are not yet convinced that this is an
appropriate role for CHRE, as it may create conflicts with its existing oversight work.
If it were to be proposed that CHRE take on a scrutiny role, we believe that further
consideration would need to be given to the implications of such a change and
consideration of practical issues, in discussion with regulators.
We agree that there are areas in which it would be appropriate for the Secretary of
State to approve rules. There should be clear criteria and rules around this - it would
be appropriate for the Secretary of State to have a role in approving matters of
constitutional significance and areas of significant public protection or regulatory
impact concern.
This system would, however, need to be clear to ensure that appropriate
arrangements are in place regarding the balance of accountabilities in the nations.
Provisional proposal 2-5: The power of the regulators to issue standing orders
should be abolished.
We support this proposal.
Provisional proposal 2-6: The regulators should have the ability to implement
their statutory powers by making rules, instead of a mixture of rules and
regulations.
We support this proposal.
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Provisional proposal 2-7: The statute should require the regulators to consult
whenever issuing or varying anything which is binding, anything which sets a
benchmark or standard, and a competency. The regulators should be required
to consult such persons it considers appropriate […]
We support this proposal in principle, although we are have a concern that the way
this proposal has been expressed might require regulators to carry out a large
number of unnecessary consultations. It is very important that any decisions made
by regulators are informed by the views of those with an interest and those who will
be affected. But requiring in the statute that regulators consult on ‘anything that is
binding’ would take away the ability of regulators to use their own knowledge of their
sectors to gauge whether a consultation is necessary for the issue and audience.
Provisional proposal 2-8: The formal role of the Privy Council in relation to
health and social care professional regulation should be removed entirely.
We support this proposal subject to adequate and proportionate alternative
arrangements being found that address the issues identified in our response to
provisional proposals 2-3 and 2-4.
Provisional proposal 2-9: The House of Commons Health Committee should
consider holding annual accountability hearings with the regulators which
should be coordinated with the CHRE’s performance reviews. The Scottish
Parliament, National Assembly for Wales and Northern Ireland Assembly
should also consider instituting similar forms of accountability.
We are supportive of regulators being subject to parliamentary accountability,
including with regard to our responsibilities in the devolved administrations. We
would however encourage the Commissions to explore ways in which this process
can be implemented to avoid unnecessary duplication of work or creating situations
where regulators are drawn in conflicting policy directions.
Provisional proposal 2-10: The Secretary of State should be given formal
powers to make decisions on matters that require a political policy decision to
be made, including matters where there is a sufficient public interest and
matters that give rise to questions about the allocation of public resources.
We support this proposal in principle, but it has the potential to have implications for
the political independence of regulators if it is not implemented carefully. We agree
that it is appropriate that high-level cross-regulatory political decisions be left to
government. However, the proposal as constructed is very broad. We would wish to
see clarity around the scope, thresholds and process for Secretary of State decisions
on what areas are appropriate for intervention - i.e. what is a 'sufficient’ public
interest and what constitute ‘questions’ about the allocation of public resources, and
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what duties there would be on the Secretary of State to consult or seek the approval
of parliament.
Provisional proposal 2-11: The statute should place a duty on each regulator
to provide information to the public and registrants about its work.
We support this proposal.
Provisional proposal 2-12: Each regulator and the CHRE should be required to
lay copies of their annual reports, statistical reports, strategic plans and
accounts before Parliament and also in all cases the Scottish Parliament, the
National Assembly for Wales and the Northern Ireland Assembly.
We support this proposal.
Provisional proposal 2-13: The statute should not require the regulators to
send a copy of their accounts to the Comptroller and Auditor General or to the
Auditor General for Scotland.
We support this proposal.
Provisional proposal 2-14: The order making power in section 60 of the Health
Act 1999 should be repealed and instead the Government should be given
regulation-making powers on certain issues.
We support this proposal, as long as the statute is drafted in such a way as to avoid
situations where any difficulties or gaps in the legislation can be addressed without
requiring changes to primary legislation. This could be by ensuring the statute is
sufficiently flexible and permissive, and that regulations are able to address most
issues. Alternatively, it might be appropriate for a mechanism similar to the current
section 60 process to be retained in the new statute as a safeguard against
unforeseen difficulties.
We are generally supportive of the Government being given regulation-making
powers in certain areas, for the purpose of allowing flexibility and placing
accountability for fundamental public policy issues at the appropriate level. We have
concerns, however, about the potential extent of Government regulation-making
powers as set out in the consultation document. There is a significant risk of
compromising the political independence of regulators and destabilising the sector if
the Government is given far-reaching powers to make changes to the work of
regulators without sufficient scrutiny from parliamentary processes. Any changes
made by the Government must be made in an open and transparent manner and be
necessary for the protection of the public.
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Provisional proposal 2-15: The Government should be given a regulationmaking power to abolish or merge any existing regulator, or to establish a new
regulatory body. This power would also enable the Government to add new
professional groups to, or remove professional groups from, statutory
regulation.
Provided appropriate safeguards are in place, we support this proposal. However, if
not enacted appropriately, this proposal has the potential to significantly compromise
the political independence of regulators and to create uncertainty in the sector. It is
appropriate that the Government make decisions about the nature of statutory
regulation, but the framework in place for those decisions must be clear in requiring
they be made in a transparent and accountable manner, including public consultation
and parliamentary approval.
Question 2-16: Should the CHRE be given a power to recommend a profession
for statutory regulation, or the removal of a profession from statutory
regulation? If the Government decided not to comply, it would be required to
issue a report setting out its reasons.
We are not clear that such a statutory power is necessary, since the CHRE or any
regulator could make such a recommendation to the Government at present. We
would expect the Government to respond to any such recommendation if made
publicly, so are unclear why the statute should require the publication of a report.
Provisional proposal 2-17: The Government should be given powers to issue a
direction in circumstances where a regulator has failed to perform any of its
functions, and if the regulator fails to comply with the direction, the
Government may itself give effect to the direction (see also provisional
proposal 13-2).
Provisional proposal 2-18: The Government should be given powers to take
over a regulator which is failing to carry out its functions.
We believe that clarification is necessary as to the circumstances in which these
powers could be used, especially the process for identifying failure to perform
functions (and the role, if any, of CHRE in this). While these powers are currently
held by the Privy Council, they are somewhat limited in scope and have never been
used. We believe that if such broad powers are to be held by the Secretary of State
there would again be the potential for the political independence of regulators to be
compromised without appropriate safeguards.
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Provisional proposal 2-19: The Government should not have express powers
in the statute to initiate a public inquiry. This would continue to be provided
for under other existing Government powers.
We support this proposal.
Provisional proposal 2-20: If the Scotland Bill 2010 does not become law, any
use of the proposed regulation-making power set out in provisional proposal
2-13 in respect of a profession for which the Scottish Parliament has
legislative competence, must be consulted on by Scottish Ministers and laid
before the Scottish Parliament as well as the UK Parliament.
We support this proposal.
Question 2-21: Should the Pharmacy (Northern Ireland) Order 1976 be
reconstituted and retained as a separate part of the new statute?
We have no comments on this issue.
Question 2-22: Should the proposed regulation-making power set out in
provisional proposal 2-15 include a general provision to incorporate the
Pharmaceutical Society of Northern Ireland into the main legal framework of
the new statute (following approval by the Northern Ireland Assembly)?
We have no comments on this issue.
Question 2-23: Which, if any, of the specific proposals which follow in this
consultation paper should be applied to the Pharmaceutical Society of
Northern Ireland?
We have no comments on this issue.
Question 2-24: How should the new legal framework deal with cases left over
from the previous legal regimes? What practical difficulties are likely to arise
from the repeal of existing legislation and rules?
We would anticipate some challenges in the transitional period, which will require an
appropriate time period to be in place before the new legislation comes into effect,
and appropriate provision to be made in the legislation for dealing with fitness to
practise cases that cross over. Developing new rules and aligning existing ones
under the new legislation will require the expenditure of very significant time and
resources on the part of regulators, which we believe may have been
underestimated in the analysis of the impacts of legislative change.
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Part 3: Main duty and general functions of the regulators
Question 3-1: Should the statute specify the paramount duty of the regulators
and the CHRE is to: (1) protect, promote and maintain the health, safety and
wellbeing of the public by ensuring proper standards for safe and effective
practice; or (2) protect, promote and maintain the health, safety and well-being
of the public and maintain confidence in the profession, by ensuring proper
standards for safe and effective practice?
We support the principle that the statute should specify a consistent paramount duty
across the regulators, to provide clarity as to regulators’ role. We also agree that this
statement of the primary duty should include protecting, promoting and maintaining
the health, safety and wellbeing of the public by ensuring proper standards for safe
and effective practice.
The Opticians Act does not currently include maintaining confidence in the
profession as a main duty of the General Optical Council. We would, however,
support inclusion of this principle in the new overarching statute. It is a widely
accepted principle that the purpose of professional regulation goes beyond ensuring
the technical competence of individual professionals. ‘Fitness to practise’ has always
been conceived as including broad areas of ethical behaviour and trustworthiness as
a professional, and we believe that it would be worthwhile recognising this in a
description of regulators’ overarching duties.
Communication and trust are fundamental to good healthcare. If there were the
potential for a narrower interpretation of regulators’ roles in this area to be adopted,
our ability to intervene in situations where registrants may have behaved criminally
or highly unethically but where their professional competence in not in question could
be compromised. This could lead to a loss of trust and confidence in our role as a
regulator and in the profession as a whole.
We would, however, suggest that the wording should be clear that it is the public’s
confidence in the professions that it is the regulators’ duty to maintain. There may be
a slight risk of misinterpretation in the current formulation of option (2) in the
question, such that regulators should be seeking to maintain the confidence of the
professions in the work of the regulators themselves. While this is important, the
regulators’ primary duties lie in the direction of accountability to and protection of the
public, and it might be worthwhile making this clear in the wording of the statute.
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Provisional proposal 3-2: The statute should not include a statement setting
out the general or principal function(s) of the regulators.
We agree with this proposal. We agree that the functions of the regulators should be
clear from the primary duties and the functions and powers set out elsewhere in the
statute, so do not require restatement here.
Question 3-3: Should the statute include guiding principles which would apply
to all decisions made by the regulators, and if so what should they be?
We would be cautious about any proposal that guiding principles should be included
in the statute. There are already multiple sets of principles which guide regulators’
work, and these can change over time in response to developments in thinking on
the roles of regulators or government or changes in the delivery of services. There
may therefore be a risk that codifying principles in the statute could be restrictive in
the future.
If there were to be principles set out in the statute, we believe that they would need
to be well established and clear principles such as public interest and the Nolan
principles, rather than ones which may change in focus or interpretation over time
such as right-touch regulation and promoting professional advancement. Again,
given that regulators’ main duties, functions and powers will be set out elsewhere,
including requirements to have regard to equalities and human rights legislation, to
consult and cooperate with other bodies, we would question whether any addition
overarching statement of principles is necessary.
Question 3-4: Should the statute include a general power for the regulators to
do anything which facilitates the proper discharge of their functions?
We agree that the statute should include this general power. As a general principle
we believe that the statute should adopt an enabling approach that allows regulators
to carry out their functions as they see fit, within the general duties and powers
provided in the legislation. This general power would also provide certainty that
regulators can act appropriately where the legislation is not entirely clear, or where
some activity is required that is not explicitly provided for in the legislation but that is
consistent with regulators’ overall role and functions.
Part 4: Governance
Question 4-1: Should the statute: (1) reform the existing structure to
encourage Councils to become more board-like; and/or (2) reform the existing
structure by establishing a statutory executive board consisting of the chief
executive and senior directors; and/or (3) establish a unitary board structure
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which would move away from a two-tier approach based on a Council and
officials?
The GOC has already taken steps in recent years to reduce the size of its Council to
12 members with a lay Chair, and for the Council itself to operate in a more efficient
and ‘board-like’ manner. We believe that there is value in the Council’s role focusing
on that of strategic direction and oversight, and support initiatives in that direction.
We note that the consultation document states that the three options set out in this
question are not intended necessarily to be mutually exclusive. We agree with this
approach. We believe that regulators should be able to establish a governance
model that suits each of their needs and requirements, and have the flexibility for
those structures to change over time.
We believe there would be challenges in further reducing the size of Council,
particularly in also simultaneously including representation on the Council from both
the professions that we regulate, maintaining a lay and registrant split, having
representation and expertise from the devolved administrations, meeting equality
and diversity requirements, and ensuring the Council includes a sufficient level of
expertise and experience.
Provisional proposal 4-2: The statute should establish each Council as a body
corporate. The regulators should continue to be able to apply to become
registered with the Charity Commission if they wish to do so.
Provisional proposal 4-3: The statute should require that each Council must be
constituted by rules issued by the regulators.
Provisional proposal 4-4: Each regulator should be required to issue rules on
the appointment of Council members and chairs, terms of office, duration of
membership, grounds for disqualification, quorum for meetings,
circumstances in which members (including chairs) cease to hold office, are
removed or are suspended, education and training of Council members, and
attendance requirements of Council members.
We support the above proposals (4-2 to 4-4). We would suggest, however, that rules
around the constitution of Councils is one of the areas in which the Government may
have a legitimate oversight interest, as currently provided by means of Privy Council
approval. There may be risks that public confidence in the regulators could be
damaged if there is a perception that Councils are able to change their key
constitutional arrangements to suit the interests of their current members without
checks and balances. Some form of oversight of regulators’ constitutions would also
help ensure that an appropriate degree of consistency in constitutional arrangements
is in place across the regulators, while flexibility in the details is also maintained.
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Question 4-5: Is an additional form of oversight required over the appointment
of the General Council members? For example, should the Government have
powers to remove members in certain circumstances?
We have valued the role of the Appointments Commission in the past in this area,
and we think that there are some risks associated with the loss of that independent
appointments mechanism. However, CHRE is currently developing standards for
appointments, and these could provide a clear and robust means of ensuring an
appropriate process is followed for appointment of Council members, with
opportunities for concerns to be raised.
We also would see some risks in a government power to directly remove individual
members, and this seems unnecessary as other safeguards are proposed to be in
place (including power of government intervention where a regulator is failing to
deliver its statutory functions).
Question 4-6: Should: (1) the statute specify a ceiling for the size of the
Councils of and the proportion of lay/registrant members; or (2) the
Government be required to specify in regulations the size of Councils and the
proportion of lay/registrant members; or (3) the regulators be given general
powers to set the size and composition of their Councils and the Government
be given default powers to intervene if this is necessary in the public interest?
As indicated previously, we support an approach that seeks a balance between the
need to provide regulators with the flexibility to organise themselves as they consider
appropriate, and the desire for a clear, consistent and best-practice approach to be
taken to governance and regulatory systems. With that in mind, we believe it would
be unnecessarily inflexible in regard to future developments for the statute to set out
a maximum number of Council members. We believe that option 3 represents the
most proportionate approach.
We do, however, think the principle of an equal split between lay and registrant
members (with allowance for an additional lay Chair) is important enough to warrant
inclusion in the statute.
Provisional Proposal 4-7: The statute should define a lay member of the
Council as any person who is not and has not been entered in the register of
that particular regulatory body, and a registrant member as any person who is
entered in the register of that particular regulatory body.
We support this proposal in principle, although we would add that the GOC also
registers bodies corporate, and the definition of ‘lay member’ under the Opticians Act
also excludes current and former directors of GOC-registered bodies corporate. Our
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existing definition of lay member also excludes anyone holding a qualification that
would make them eligible for registration - this may also be worth considering.
More generally, there are similarities and cross-overs between health professionals
engaged in delivering eyecare (including optometrists/ophthalmic opticians,
dispensing opticians, ophthalmologists, orthoptists, and GPs with a special interest in
ophthalmology). We would question whether a practitioner in a related eyecare
profession would be considered by the general public to be a lay member, but we do
not see a clear way of resolving this point without introducing some considerable
complexity into the definition or ruling out any health professional from consideration
as a lay member. While we are not certain that a member of any other health
profession would generally be considered by the public to be a ‘lay member’, a
blanket exclusion for all health professions may be too broad. In general, we believe
that this is an area that we believe deserves further exploration.
Question 4-8: Should Council members be prohibited from concurrent
membership of another Council?
While we can understand why there might be some concern over potential conflicts
of interest or that the pool of Council members among regulators being too narrow,
we do not believe that these concerns justify a prohibition in the statute. Again, we
believe that the principle of flexibility in governance is also important, and as long as
appointments processes are transparent and robust, we would not see a need for
the statute to rule out members sitting on more than one Council.
Provisional Proposal 4-9: The regulators should be given broad rule-making
powers to determine their own governance arrangements, including the ability
to establish committees if they wish to do so.
Provisional Proposal 4-10: The regulators should be able to make rules for
committees or any other internal groups it establishes, including their size and
membership.
We support the above proposals (4-9 and 4-10). It is important that if regulators are
to be encouraged or required to reduce the size of their Councils, they be given the
ability to change their other governance arrangements as necessary, to make best
use of their members and committees.
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Provisional Proposal 4-11: Each Council should be given powers to delegate
any of its functions to any Council member, officer or internal body. Any
delegations must be recorded in publicly available scheme of delegation.
There should continue to be a prohibition on delegating any power to make
rules.
We support this proposal.
Part 5: Registers
Provisional proposal 5-1: The statute should set out a core duty on all the
regulators to establish and maintain a professional register.
We support this proposal. Registers are a fundamental tool of professional regulation
and public protection.
Provisional proposal 5-2: The regulators should have the ability but not a duty
to appoint a Registrar.
We support this proposal.
Provisional proposal 5-3: The statute should specify which registers must be
established by the regulators, including any different parts and specialist lists.
The Government would be given a regulation-making power to add, remove or
alter the parts of the register and specialist lists.
We support this proposal.
Provisional proposal 5-4: The Government should be given a regulationmaking power to introduce compulsory student registration in relation to any
of the regulated professions.
We support this proposal.
The GOC’s system of compulsory student registration was introduced by the
Opticians Act (Amendment Order) 2005. It was introduced primarily to ensure that
students coming through education and professional training were fit to do so,
especially when performing restricted activities. Student registration was also
introduced to provide a consistent means of investigating and addressing concerns
about students, and to promote professional conduct and ethics from the beginning
of students’ careers in the professions.
We are aware that student registration imposes some significant costs on students
and training providers. Of particular significance are the difficulties created for
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students where GOC investigations are required into concerns about a student’s
fitness to undergo training, or where students have spent a period unregistered
(often through oversight or administrative error). Maintaining an up-to-date register
of students also creates some significant administrative costs for training providers,
as well as for the GOC, since it is necessary to cross-check the information
received from students with the enrolment records held by training providers.
We also note the experience and views of other regulators and stakeholders that
there may be other lower-impact ways in which many of the benefits of student
registration in the optical sector can be gained. These include: working more closely
with training providers to ensure a consistent and appropriate approach is taken to
dealing with concerns about student’s health, conduct and future fitness to practise;
and to promote an awareness of ethical issues and professional approach from
early in students’ training.
This is an area that we intend to explore further. However we would note at this
point that it is possible that the GOC may not seek to have compulsory student
registration powers activated by the Government under a new statutory framework.
As noted in our overview comments on the consultation, we believe that the time
may be right for a reassessment of the balance of the GOC’s regulatory approach in
some areas, including in respect of student registration. Our work in the future will
focus on what alternative arrangements could appropriately be put in place to
ensure that training providers respond consistently to concerns about student
conduct, and that appropriate supervisory and regulatory mechanisms are in place
for students in practice-based training. We look forward to sharing the results of this
work with the Law Commissions in the future.
Whether or not student registration of optometrists and dispensing opticians is
maintained, we believe that it would be appropriate for the statute to retain the
option for compulsory student registration powers to be available to regulators. We
would not wish to lose the option of resuming the compulsory registration of
students if the nature of training or of professional practice were to change in the
future and significantly increase risks associated with students, or if it proves
impossible for training providers to deal adequately with concerns about student
fitness to practise.
Question 5-5: Should student registration be retained in the new legal
framework, and/or how can the legal framework help to ensure that the
principles and practices of professionalism are embedded in pre-registration
training?
As set out in our response to the previous proposal, we consider that the new legal
framework should retain student registration powers.
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We are aware that other regulators register some students (those working under
supervision in practice settings) through a ‘provisional registration’ model. We
consider that regulators should retain the power to register students on that basis,
as well as system of registration of all students. Indeed, as part of our future work in
this area we will be exploring whether a provisional registration model would be
appropriate in the optical sector, rather than the existing full compulsory student
registration system.
We are aware, however, that there are some significant differences between the
professions that we regulate and the way that training is structured in those
professions. Optometry students spend the first three years of their training in
universities, engaged in academic study. While those students will sometimes
perform restricted activities on members of the public (particularly other students),
they are performed under close supervision in an academic setting.
In contrast, student dispensing opticians may undertake practice-based work with
members of the public from the early stages of their training. Under the existing
structures of dispensing training programmes there might, therefore, be difficulties
in implementing a provisional registration system. These issues would need to be
carefully considered in any changes we might wish to make to the current system,
and we would intend to engage with our stakeholders in any decisions in that
regard.
Question 5-6: Should the regulators be given powers to introduce voluntary
registers?
We support this proposal. We are, however, wary of the potential for confusion
around the purpose and nature of registration with a regulator if there is a
proliferation of voluntary registers, and we believe that a cautious approach should
be encouraged in this area. It is possible that alternative wording to distinguish
statutory registers from voluntary registers (for example ‘lists’, which has previously
been used in regards to GOC registration of bodies corporate) might be worth
exploring.
Question 5-7: If the regulators are given powers to introduce voluntary
registers, should the CHRE be given a formal power to recommend to the
regulator in question that a group should become or cease to be voluntarily
registered? If the regulator decided not to comply, it would be required to
issue a report setting out its reasons.
As noted in our response to the previous question, we are cautious about the
potential for confusion regarding voluntary registers. We are not convinced, however,
that the mechanism set out in this question would be the most appropriate response
to those concerns. CHRE already makes recommendations to regulators in its
annual performance reviews and policy and research work, so we do not see the
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need for an additional and specific power for it to make recommendations on this
issue to be included in the statute.
Question 5-8: Should non-practising registers be retained or abolished?
The GOC does not currently have a non-practising register, and has no plans to
introduce one. We are aware, however, that other regulators do register nonpractising professionals, and there may be an argument for flexibility to be retained
in this area.
Provisional proposal 5-9: The regulators will be required to register applicants
on a full, conditional or temporary basis. In addition, the regulators will be
given powers to introduce provisional registration if they wish to do so.
We support this proposal. There are circumstances in which the power to impose
conditions at the point of registration would be valuable, although we would not
envisage this power being used regularly. We also believe that a provisional
registration approach may be valuable for regulators, particularly as a possible
alternative to a full student registration system.
We do think that the meaning of provisional registration relative to student
registration might need to be clarified, however. Both registration types concern
regulation of those who are not yet fully qualified and fit to work with the public other
than under supervision, and we wonder whether there is a need for separate
terminology. To provide clarity, it may be more appropriate for a single system to be
set out in the statute for registration of these student professionals, with the criteria
as to those students requiring registration to be set in regulations.
Provisional proposal 5-10: The statute will provide that if the Secretary of State
advises that an emergency has occurred, a regulator can make certain
temporary changes to the register.
We support this proposal.
Provisional proposal 5-11: The statute should specify that in order to be
registered on a full or temporary basis the applicant must be appropriately
qualified, be fit to practise, have adequate insurance or indemnity
arrangements (except for social workers), and have paid a prescribed fee. The
regulators should have broad rule-making powers to specify the precise detail
under each of these requirements.
We support this proposal.
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Provisional proposal 5-12: The regulators should be given powers to establish
separate criteria for the renewal of registration and for registrants proceeding
from provisional to full registration.
We support this proposal, noting our comments made in respect of provisional and
student registration in response to provisional proposal 5-9.
Question 5-13: Should the statute provide that in order to be registered an
applicant must demonstrate that they are a “fit and proper person” to exercise
the responsibilities of their profession?
We support this proposal.
Question 5-14: Should the legislation state that applicants are entitled to be
registered provided that they satisfy the relevant criteria or that the regulator
must register the applicant provided that they satisfy the relevant criteria?
Does either formulation make any difference in practice?
We are satisfied with the existing formulation in the Opticians Act of ‘entitled’.
Provisional proposal 5-15: The statute should require the regulators to
communicate expeditiously with registrants and potential registrants. The
regulators would be given broad rule-making powers concerning the
processing of registration applications.
Provisional proposal 5-16: The statute should require each regulator to
establish an appeals process for when registration applications are refused.
The regulators would have broad powers to decide the precise process it
wants to introduce.
We support the above proposals 5-15 and 5-16, and welcome the flexibility provided
by broad rule-making powers.
Provisional proposal 5-17: The statute should provide a right of appeal when
registration applications are refused, to the High Court in England and Wales,
the Court of Session in Scotland, and the High Court in Northern Ireland.
We support this proposal.
Provisional proposal 5-18: The regulators should have broad powers to
establish rules concerning the upkeep and publication of the register.
We support this proposal.
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Provisional proposal 5-19: The statute should require each regulator to
establish process for dealing with fraudulently procured or incorrectly made
entries. The regulators would have broad powers to decide the precise
process it wishes to introduce.
We support this proposal.
Provisional proposal 5-20: The statute should provide a right to appeal against
registration decisions relating to fraudulently procured or incorrectly made
entries, to the High Court in England and Wales, the Court of Session in
Scotland, and the High Court in Northern Ireland.
We support this proposal.
Provisional proposal 5-21: The statute should provide that applications for
restoration in cases where a registrant’s entry has been erased following
fitness to practise proceedings must be referred to a Fitness to Practise Panel
or similar committee.
We support this proposal.
Provisional proposal 5-22: The statute should provide a right to appeal against
restoration decisions by a Fitness to Practise Panel to the High Court in
England and Wales, the Court of Session in Scotland, and the High Court in
Northern Ireland.
We support this proposal.
Question 5-23: Should the statute set a consistent time period before which
applications for restoration cannot be made (in cases where a registrant’s
entry has been erased following fitness to practise proceedings), or should
this matter be left to the regulators to determine?
We support this proposal - it would be helpful to have consistency among regulators
in this area.
Provisional proposal 5-24: The statute should require each regulator to
establish in rules a process for considering applications for restoration in
cases which are not related to fitness to practise proceedings. The regulators
would be given broad discretion to determine the precise process it wishes to
adopt.
We support this proposal. This supports the overall approach of providing regulators
with flexibility in respect of delivering their functions.
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Provisional proposal 5-25: The regulators should have broad powers to make
rules concerning the content of the registers. The only exception to this
approach would be that set out in provisional proposal 5-27.
We support this proposal, although we would not object to there being clarity as to
the meaning and minimum content of a ‘register’.
Question 5-26: Should the regulators be given broad powers to annotate their
registers to indicate additional qualifications or should this power be subject
to certain restrictions?
We support the power for regulators to annotate their registers, but believe there
may benefit in a consistent approach being adopted to the inclusion of additional
qualifications (i.e. other than those required for registration) in the register. This may
be an area that requires further discussion among regulators and with CHRE.
Provisional proposal 5-27: The statute should require all current fitness to
practise sanctions to appear in the public register.
We support this proposal. There are limitations in the GOC’s current rules in this
respect, and we would welcome a consistent approach among the regulators.
Provisional proposal 5-28: The regulators should have discretion to include
details of undertakings, warnings and interim orders in the public register
(subject to the main duty of the regulators to protect the public by ensuring
proper standards).
We would support inclusion of these details being made mandatory for all regulators.
Question 5-29: Should the regulators be required to publish information about
professionals who have been struck off, for at least 5 years after they have
been struck off?
We agree that regulators should be required to publish information about
professionals that have been struck off. We do not believe that the registers
themselves are the appropriate location for that information, as suggested in
paragraph 5.113. The registers are intended to be a record of those registrants who
are fit to practise, and those who have been struck off by definition do not meet that
requirement. When information on erased registrants is published, we believe that it
should be clearly separated from the list of currently registered professionals, to
avoid confusion. We believe that there are ways of making that information
accessible without publishing it in the public registers.
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Question 5-30: Should the regulators be required to include in their registers
details of all previous sanctions?
We currently only publish information on current sanctions in our online register and
in the past hearings section of our website, plus information on the outcomes of all
hearings over the previous 12 months in the past hearings section. We are
comfortable with our current approach, although we have undertaken to review
whether the register should include information on registrants’ past sanctions in the
future, once a new database system is in place that would make this technically
feasible.
We believe that there is a place for consistency among regulators in this area, but
we also note that there are arguments on both sides - in particular, that once a
professional is deemed fit to practise, the relevance of any past sanctions may be
questionable and the impact of their being published potentially disproportionate.
There are also differences between the professions that might argue for different
approaches being taken by different regulators.
We therefore lean towards regulators retaining discretion in this area, being enabled
rather than be required by the statute to publish this information in the registers. But
we would welcome collaboration among regulators to ensure an appropriate
consistency of approach.
Provisional proposal 5-31: All the existing protected titles and functions that
are contained currently in the governing legislation should be specified in the
new statute.
We support this approach. We believe that it is important that the legislation clearly
set out protected titles and functions.
Provisional proposal 5-32: Government should be given a regulation-making
power to add to or remove any of the protected titles and functions.
We support this proposal. Given the impact of changes to protected titles and
functions, we agree that approval of these decisions should sit with the Government.
Question 5-33: How appropriate are the existing protected titles and functions?
This is a complex area, with a number of areas of debate.
In relation to protected titles, there is a difficulty in optics posed by the use of the
word ‘optician’ - while use of the terms ‘ophthalmic optician’, ‘optometrist’, and
‘dispensing optician’ by individual professionals, students and businesses is
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restricted to those who are registered, rules around the use of the more general term
‘optician’ is less certain.
There is provision in the Opticians Act for action to be taken against individuals or
businesses that ‘takes or uses any name, title, addition or description falsely implying
that they are registered’, or who ‘otherwise imply that they are registered’ when they
are not. The scope and criteria of these broad provisions are not certain, and are
expensive to test, but do provide some ability for the GOC to act when the spirit of
the law is being breached by a misuse of title.
The relationship of protected titles to business regulation is particularly complex,
given the requirements on the ownership or management of businesses using
protected titles, and the effectiveness of the protected title regime for businesses is
questionable given that only some types of business structure are required to be
registered, and that businesses can trade freely in the sector without using a
protected title. These issues are discussed further in our responses to the questions
on business regulation in chapter 11.
As noted in the consultation document, there is also on-going debate within the
sector around the possibility of changes to protected functions, such as to allow for
refracting by dispensing opticians.
In summary, we are conscious that issues of protected title are contentious and
contested in our sector. While we have no current proposals for change, it will be
important that there is a mechanism through which we can seek change if it
becomes apparent that it is necessary.
Provisional proposal 5-34: The regulators will have powers to bring
prosecutions and will be required to set out in a publicly available document
their policy on bringing prosecutions (except in Scotland).
We support this proposal, although we acknowledge the difficulties set out in the
consultation paper regarding regulators bringing prosecutions and would welcome
consideration of means they could be addressed.
Part 6: Education, conduct and practice
Question 6-1: Should our proposals go further in encouraging a more
streamlined and coordinated approach to regulation in the areas of education,
conduct and practice? If so, how could this be achieved?
We welcome consideration of ways in which a coordinated and streamlined
approach to regulation can be facilitated in these areas. It is also important, however,
that the statute acknowledges and accommodates the diversity of approaches
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currently in place. We believe that it is important that regulators retain flexibility to
regulate as appropriate in their sectors, and would caution against requirements
around standards codes of conduct being made too inflexible or generic. We would
suggest that regulators be encouraged to collaborate where appropriate, while
retaining ultimate accountability for their regulatory approaches.
Provisional proposal 6-2: The statute should require the regulators to make
rules on:
(1)
(2)
(3)
(4)
(5)
which qualifications are approved qualifications for the purposes
of preregistration and post-registration qualifications;
the approval of education institutions, courses, programmes
and/or environments leading to an award of approved
qualifications and the withdrawal of approval;
rights of appeals to an individual or a panel against the decision
of the regulator to refuse or withdraw approval from an institution,
course or programme;
the quality assurance, monitoring and review of institutions,
courses, programmes and/or environments; and
the appointment of visitors and establishment of a system of
inspection of all relevant education institutions.
We support this proposal, other than to question the intention behind point (3) on the
right of appeal. Not all regulators have an existing internal appeals process regarding
decisions on approval of training providers, and we are unsure whether the intention
of this proposal is to require all regulators to introduce such a process. If this is the
case, we would note that this might impose additional resource requirements, and
would seek more clarity around the proposal.
Provisional proposal 6-3: The statute should require the regulators to establish
and maintain a published list of approved institutions and/or courses and
programmes, and publish information on any decisions regarding approvals.
We support this proposal. This is consistent with our current position.
Provisional proposal 6-4: The statute should require education institutions to
pass on to the regulator in question information about student fitness to
practise sanctions.
We support this approach in principle, although it may be more appropriate for
regulators to be given a power to request this information be provided, rather than
placing a direct requirement on training providers. There are differences among the
regulators in respect of how student fitness to practise is managed, which a more
flexible approach in the statute might more easily accommodate.
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Question 6-5: Should the powers of the regulators extend to matters such as a
national assessment of students?
We would support regulators having a permissive power in this area to provide for
future flexibility, but this should not be a requirement.
Question 6-6: Should the regulators be given powers over the selection of
those entering education?
We agree with the arguments set out in the consultation document that regulators
should not be given powers in this area.
Question 6-7: Could our proposals go further in providing a framework for the
approval of multi-disciplinary education and training, and if so how?
Ensuring that enough flexibility is available in how and what we accredit would allow
for multiple disciplinary training, but this should not be at the expense of our ability to
assess against profession-specific requirements (for example competencies and
practical experience). This may be more relevant to NHS-funded training.
Question 6-8: Is too much guidance being issued by the regulators and how
useful is the guidance in practice?
This is a broad question that will have no single answer. Different regulators issue
different amounts of guidance, much of which is profession-specific. We have no
evidence that there is too much guidance produced, or regarding the specific
usefulness of guidance that we issue - this is an area that registrants and other
stakeholders would be in the best position to answer, although we also intend to
review our approach to issuing standards and guidance in the future, which may
provide an opportunity to assess the impact of our existing guidance in more detail.
We would not support any move to restrict guidance being issued by regulators. The
intention of regulators’ guidance is to support the maintenance of standards in the
profession, provide information on best practice or to clarify matters of interpretation
of policy or standards. These are important functions. The fact that guidance is
produced by another related regulator or other organisation should not preclude
more tailored guidance being issued by regulators for their own audiences.
Regulators already share information on the guidance they issue, but there may be
scope for more cooperation in this area.
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Provisional proposal 6-9: The statute should require the regulators to issue
guidance for professional conduct and practice.
We support this proposal. This reflects current practice. As noted above, we would
support development of opportunities for regulators to collaborate in this area,
including the possibility of issuing joint guidance where appropriate.
Provisional proposal 6-10: The statute should provide for two separate types
of guidance: tier one guidance which must be complied with unless there are
good reasons for not doing so, and tier two guidance which must be taken into
account and given due weight. The regulators would be required to state in the
document whether it is tier one guidance or tier two guidance.
We support a distinction between binding standards or codes and non-binding
guidance. We are however not convinced that the proposed terminology of ‘tier one’
and ‘tier two’ guidance is ideal - we are not sure what is added, relative to the current
distinction between standards/codes and guidance. ‘Guidance’ is a word that in itself
implies that it is non-binding, so the concept of binding guidance may cause
confusion. We are also not sure that the distinction between tier one guidance that
‘must be complied with unless there are good reasons for not doing so’ (emphasis
added) and other guidance that must be ‘taken into account’ is sufficiently clear. On
the whole, we think that this is a proposal that requires additional consideration and
clarification.
Question 6-11: How should the legal framework deal with the regulators’
responsibilities in relation to professional ethics?
This question is very open. There is a role for there is a role for regulators in relation
to professional ethics (safeguarding vulnerable persons being a good example), so
the statute should be clear as to the regulators’ roles in this area, as part of other
standards and guidance. We would however like to see flexibility as to how we do
so, including joint ethical standards or guidance with other regulators.
Provisional proposal 6-12: The statute will require the regulators to ensure
ongoing standards of conduct and practice through continuing professional
development (including the ability to make rules on revalidation).
We are generally supportive of this proposal. We would note that the GOC currently
uses the term ‘continuing education and training’ rather than ‘continuing professional
development’, so there will be a need for some alignment to take place to avoid any
unintended consequences. General rule-making powers on revalidation would be
very helpful.
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Part 7: Fitness to practise: Impairment
Question 7-1: Should the statute: (1) retain the existing two-stage approach for
determining impaired fitness to practise; or (2) implement the
recommendations of the Shipman report; or (3) remove the current statutory
grounds which form the basis of an impairment and introduce a new test of
impaired fitness to practise based on whether the registrant poses a risk to the
public (and that confidence in the profession has been or will be undermined)?
In our view, the statute should provide regulators with the necessary degree of
flexibility to deal appropriately with a broad range of complaints and concerns about
registrants’ fitness to practise (or undertake training or carry on business, in respect
of student and business registrants).
However, while we see some potential value in that regard in the approach proposed
under option (3), of a broad risk-based assessment of a registrant’s fitness to
practise, we also believe that there is value for the public and registrants in the clarity
provided by the statute containing indications of possible grounds of impairment. We
are not yet convinced that this change would have benefits that would justify the
risks of introducing an entirely new system, and believe that under such a system
there is a possibility that we may end up having similar legal arguments under
another name. We would also want to retain the existing clarity and flexibility in
dealing with cases that fall into multiple categories and that arise from direct code or
statutory breaches.
We therefore support option (1), of retaining the existing two-stage approach for
determining impaired fitness to practise. We do believe that there are limitations in
the current system that could be addressed. As noted in the report, the current
definitions are rigid, and perhaps do not place public safety/protection at the heart of
the decision. We would support exploration of a more modern and flexible set of
grounds of impairment, which might include issues of trust and confidence in the
profession.
Question 7-2: If a list of statutory grounds of impaired fitness to practise is
retained, should it refer to a broader range of non-conviction disposals?
We would agree that the grounds of impairment, if they were to be retained, should
include a broader range of non-conviction disposals.
Although the presence of a criminal conviction/non-conviction disposal does not
automatically lead to a finding of impairment, such matters do raise a question about
a registrant’s fitness to practise. A single fixed penalty notice may not merit an
investigation or concern but a string of them might.
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Question 7-3: How adequate are the powers of the regulators to require
disclosures from the Independent Safeguarding Authority and Disclosure
Scotland? What practical difficulties, if any, arise as a result of differences
between the protection of vulnerable groups schemes in England, Wales,
Northern Ireland and Scotland?
The GOC has the power to demand information from any person, or indeed from the
registrant who is the subject of a fitness to practise investigation, by means of s.13B
of the Opticians Act. We have not had to seek information from Disclosure Scotland
and so are unable to comment from a practical perspective; we would assume that
they would be required to comply with the s.13B demand. The current wording of the
legislation however cannot assist the regulator where the person from who the
information is being requested considers that the information they hold is not
relevant to the GOC. In addition, we remain unclear as to the mechanisms by which
the regulator can request information from these agencies in relation to applications
for registration, where our power under s.13B cannot be applied.
We would suggest that the power to demand disclosure is stated in such a way that
any decision about relevance is a matter for the regulator and not the person holding
the information. It is assumed that regulators have sufficient experience in the field of
public protection that information will be used appropriately, shared only with those
who are either a party or a decision maker, and where necessary sensitive
information is dealt with in a private hearing.
It appears that ISA may only share barring information with an individual or
organisation with a legitimate interest upon request; therefore it appears from our
interactions that information sharing is not pro-active but reactive. However, our
interaction has so far been limited, it may be more relevant to see how this
relationship has developed between those with more regular contact with the ISA.
Part 8: Fitness to practise: Investigation
Question 8-1: Should the new legal framework remove the concept of an
allegation entirely and instead give the regulators broad powers to deal with all
information and complaints in such manner as they consider just (subject to a
requirement that cases where there are reasonable prospects of proving
impairment must be referred for fitness to practise proceedings)?
Provisional proposal 8-2: The statute should provide that all the regulators will
be able to consider any information which comes to their attention as an
allegation and not just formal complaints.
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Provisional proposal 8-3: The statute should contain a clear statement that
there is no set format for allegations.
We agree with the proposed approach set out in questions and proposals 8-1 to 3-3.
The current legislation allows the GOC to take action where a complaint has been
raised formally, and also to open a complaint in its own name. Therefore, the GOC is
able to act proactively where it receives anonymous complaints, has sight of media
reports or other similar instances. The ability to take a proactive approach is key.
The Opticians Act defines allegation as an allegation that a registrant’s fitness to
practise is impaired. A more broad system which encourages the public to raise
concerns might be more public-focused and appropriate. One positive result could
be that regulators can take perhaps create a process for dealing with low level
complaints (currently the GOC has no screening capability and must deal with all
allegations regardless of seriousness).
Such a change may increase the number of initial complaints and as such there will
be resource implications; however, it is always helpful to understand what causes
concern to members of the public.
We do not consider that there is a need for there to be a requirement that where
there are reasonable prospects of proving impairment the case must be referred for
a formal hearing. This is the test to be applied by the screener and should sit with
that decision rather than what types of matters a regulator can deal with.
Question 8-4: Should the statute prohibit the regulators from setting a time
limit for bringing an allegation against a registrant or should there be a
consistent time limit for allegations across the regulators (and if so, what
should it be)?
The purpose of setting a time limit for bringing allegations must be considered
against the background of fitness to practise work. The ultimate decision is whether
a registrant’s current fitness to practise is impaired. Where an allegation is older, the
evidence will be stale and in practical terms it will be more difficult for a regulator to
prove that a registrant’s fitness to practise is impaired. This is a decision point which
requires a flexible approach, but we do not agree that regulators should be
prohibited from setting a time limit.
We consider the five year rule applied by the General Medical Council when
considering new allegations against a registrant to be appropriate. Under this rule
there exists an option for exceptional cases that are more than five years old to be
referred for full investigation. The statute could potentially define the test to be
applied regarding exceptional cases.
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Provisional proposal 8-5: All the regulators should have the power to establish
a formal process for the initial consideration of allegations (such as
screeners).
We support this proposal.
The purpose of fitness to practise proceedings should be to deal with the more
serious cases (that is, where there are issues in terms of public safety or confidence
in the profession). Currently, the GOC is required under the Opticians Act to open an
investigation into every complaint made where there is some link to fitness to
practise. As a result, we are required to open formal investigations into complaints
that are in some cases relatively minor.
We believe that there should be a system of triaging allegations (taken broadly as
proposed in 8-1 to 8-3) that allows some cases to be closed with no action, prior to
any investigation; where the matter is referred to an employer for action; or where
the GOC can provide advice to the registrant.
If this power is available to regulators, it would allow procedures to be adapted to
deal effectively with any changes in the health sector or respond to issues raised by
the media. For instance, if a media report has the effect of raising a large number of
complaints about a particular issue, with a number of similarities, the regulator could
adopt a process to deal with such complaints.
Provisional proposal 8-6: The regulators should have the power to prohibit
certain people from undertaking the initial consideration of allegations and
specify that only certain people can undertake this task.
We agree with this proposal. Good governance, independent decision making and
issues of bias should be taken into account in any process for initial consideration of
allegations, and a robust and transparent system should be put in place.
Provisional proposal 8-7: The regulators should have powers to establish
referral criteria for an investigation and specify cases which must be referred
directly to a Fitness to Practise Panel.
We agree with this proposal. The GOC has proposed amendments to our Fitness to
Practise Rules, which state that serious criminal convictions will be referred directly
to the Fitness to Practise Committee. We consider that regulators should have the
power to establish their own referral criteria based on a risk analysis of their
complaints and field of regulation.
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Question 8-8: Should the statute impose more consistency in relation to the
criteria used by regulators to refer cases for an investigation or the cases that
must be referred directly to a Fitness to Practise Panel?
The statute could set out the tests to be applied by the decision makers in the
regulators, e.g. the application of the realistic prospect test. But it may be more
difficult for the referral criteria to be established in statute.
We consider that each regulator will need to consider its own profession and the
issues that arise. In some aspects such as allegations of sexual misconduct or
dishonesty it is possible to conceive a consistent approach, but where there are
clinical allegations, it is more difficult. Regulators exist to fulfil a public duty and
where that is established as a fundamental principle, good and safe regulation will
flow from that.
Provisional proposal 8-9: The statute should enable but not require the
regulators to establish an Investigation Committee.
We support this proposal.
Provisional proposal 8-10: The regulators should be given broad rule making
powers concerning how and by whom an investigation is carried out.
Agree - this is a matter best addressed by each regulator. However, we do have
concerns about the concept of these broad rule making powers and how this sits
with the idea of harmonisation of process and public understanding. It has been
suggested that judicial review and responses to consultation would address any
flaws in regulators draft rules in this area - we have reservations about this, and
there may need to be an equivalent to Department of Health oversight in rule
making.
Provisional proposal 8-11: The statute should give all the regulators a general
power to require the disclosure of information where the fitness to practise of
a registrant is in question.
We support this proposal. This reflects our current powers.
Question 8-12: Are the existing formulations of the power to require disclosure
of information useful and clear in practice?
We believe that some consideration needs to be given to making the power to
require disclosure of information more robust, and providing primacy to the view of
the regulator that the information requested is relevant and ought to be disclosed.
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In practise the issue that is faced by the regulator is that the information requested is
not relevant to the regulators consideration and will not be disclosed. There also
needs to be clarity that a demand under the act takes precedence over the Data
Protection Act. These issues may be beyond the scope of the legislation, but we
would welcome their being explored further.
Provisional proposal 8-13: The power to require information should be
extended to include the registrant in question.
We support this proposal.
Question 8-14: Should any enforcement powers be attached to the power to
require information?
Yes - currently our only recourse is to make an application to the County Court. We
would support powers for the Fitness to Practise Committee to summons the holder
of the information, with appropriate penalties for non-compliance.
Provisional proposal 8-15: The statute should provide that the test for all
referrals to a Fitness to Practise Panel across the regulators is the real
prospect test.
We support this proposal. Applying a consistent test across all regulators would
support harmonisation and provide clarity for the public that there is parity in the way
that all complaints against any healthcare professional are treated.
Provisional proposal 8-16: The regulators should have powers to issue or
agree the following at the investigation stage: (1) warnings; (2) undertakings;
(3) voluntary erasure; and (4) advice to any person with an interest in the case.
The regulators would be given broad powers to make rules governing the use
of such powers. This would include rules governing who or which body can
issue them and the circumstances in which the powers can be agreed or
imposed.
We generally support these proposals, as long as the definition of ‘investigation
stage’ is permissive. We agree with the idea of consensual disposal at this stage, but
would prefer the concept of the regulator issuing these outcomes, rather than their
being ‘agreed’ with the registrant. It is important that disposal of complaints prior to a
formal hearing should not be seen as the registrant benefitting from a lesser
outcome or collaborating with the regulator to avoid a public hearing. We would
suggest that where a registrant has been issued with any of these outcomes, it may
be appropriate for these to be a matter of public record. In any event, the meaning
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and purpose of any outcomes issued at this stage should be clear, relative to
warnings and sanctions applied following a hearing.
Question 8-17: Should the statute require that any decision to use any power
listed in provisional proposal 8-16 at the investigation stage must be made or
approved by a formal committee or Fitness to Practise Panel? Alternatively,
should the powers of the CHRE to refer decisions of Fitness to Practise Panels
to the High Court be extended to cover consensual disposals?
We are not yet convinced by a suggestion that consensual disposals should be
made or approved by a formal committee or Fitness to Practise panel. It has not
been set out here whether this is a paper based exercise or not; if it were proposed
that this approval would be by means of a formal hearing, this would add an extra
layer and would seem to defeat the purpose of having the cases disposed at an
earlier stage. For smaller regulators where there is no daily hearing schedule, even
paper-based decisions could not be scheduled easily and would therefore lead to
some expense and delay in decision making. Such decisions might potentially fall
under the initial stages audit capabilities of the CHRE, although we note that this
would not allow for an immediate review.
This is about public protection and doing so in a proportionate way. Only a small
number of cases will fall into this category, and the guidance could provide that the
more serious cases must be referred. We would refer back to the point that fitness to
practise is not about punishment. By restricting or removing a registrant’s right to
practise, the public is protected. We understand that there may desire to see a public
hearing in all cases, but we believe that a balanced approach could accommodate
disposal of cases without a hearing.
Provisional proposal 8-18: The Government should be given a regulationmaking power to add new powers to those listed in provisional proposal 8-16,
and to remove any powers.
We support this proposal.
Question 8-19: Does the language used in the proposed list of powers
contained in provisional proposal 8-16 convey accurately their purpose?
We are satisfied with the proposed list of powers.
Question 8-20: Is the use of mediation appropriate in the context of fitness to
practise procedures?
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Provisional proposal 8-21: All regulators should be given rule and regulationmaking powers to introduce a system of mediation if they wish to do so.
We have reservations about this proposal 8-21. The role of the regulator in respect
of fitness to practise is to act in the public interest, and we are not yet convinced that
mediating between a patient and the registrant addresses a public concern. It is not
clear what the suggested outcomes of such a process may be.
However, we accept that there may be a need for some new solutions, as the ‘one
size fits all’ approach of the current framework does not work well in all
circumstances. We would suggest that this is an area which needs to be explored
carefully.
We would note that we believe that regulators should have the power to finance
services for mediating complaints about the quality of goods and services provided
by registrants that do not relate to fitness to practise concerns, such as the Optical
Consumer Complaints Service. This is discussed in our response to question 11-5.
Provisional proposal 8-22: The statute should provide for a right to initiate a
review of an investigation decision in relation to decisions: (1) not to refer a
case for an investigation following initial consideration; (2) not to refer the
case to a Fitness to Practise Panel; (3) to issue a warning; or (4) to cease
consideration of a case where undertakings are agreed.
We support this proposal. We have a combination of these powers in our rules.
The consultation document provides that the regulator should be given broad powers
to makes rules about the review process, including flexibility as to who would
conduct the review. We are undecided about such flexibility around who the
decision- maker should be. It most likely should not be the Fitness to Practise
Committee, as this would increase cost and administrative burden; an Investigation
Committee or Case Examiners may be appropriate, to ensure independent decision
making.
Provisional proposal 8-23: Anyone who has an interest in the decision should
be able to initiate a review of an investigation decision, including but not
limited to the Registrar, registrant, complainant and the CHRE.
We support this proposal, although it may benefit from safeguards to prevent
disruptions and delays caused by vexatious reviews.
Provisional proposal 8-24: The grounds for a review of an investigation
decision should be that new evidence has come to light which makes review
necessary for the protection of the public or the regulator has erred in its
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administrative handling of the case and a review is necessary in the public
interest.
We support this proposal. This is how the GOC’s legislation is currently drafted.
Statute may not be the place to make this statement, but we would support a
harmonised approach being adopted to rejecting requests which are based purely on
the fact that a complainant does not agree with a decision.
Provisional proposal 8-25: The statute should give the regulators broad rule
making powers on all aspects of the process for the review of an investigation
decision, except those matters specified in provisional proposals 8-22, 8-23
and 8-24.
We support this approach, subject to our comments above on harmonisation of
regulators’ approaches.
Part 9: Fitness to practise: Adjudication
Question 9-1: Should the statute require the regulators to ensure that they
establish a structure which is compliant with Article 6 of the European
Convention on Human Rights without taking into account the role of the higher
courts?
Question 9-2: Should the new legal framework ensure the separation of
investigation and adjudication, and if so how?
Question 9-3: Should the statute allow for the option of the regulators’
adjudication systems joining the Unified Tribunals Service?
We broadly support the above proposals 9-1 to 9-3. The GOC has previously
indicated its support for a clearer separation of investigation and adjudication
functions to enhance confidence about the independence of decisions on registrants’
fitness to practise. With the General Medical Council, we were to have our fitness to
practise hearings handled by the Office of the Health Professions Adjudicator. We
would support further consideration of alternative mechanisms by which that clear
separation can be facilitated, including the Unified Tribunals Service if that is
considered feasible and appropriate, or other ways in which regulators might
collaborate in this area.
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Provisional Proposal 9-4: The statute should give all the regulators a broad
power to establish rules for case management.
We support this proposal. Procedural matters such as this ought to be left to the
individual regulators, although we expect there will be a degree of similarity in how
we achieve this. We have incorporated case management into our new rules.
Provisional Proposal 9-5: The statute should provide that the overriding
objective of the Civil Procedure Rules – that cases must be dealt with justly –
is made part of the regulators’ fitness to practise procedures.
We support this proposal.
Provisional Proposal 9-6: The statute should require each regulator to
establish Fitness to Practise Panels of at least three members for the purpose
of adjudication.
We support this proposal.
Provisional Proposal 9-7: The statute should: (1) require the regulators to
establish a body which is responsible for all aspects of the Fitness to Practise
Panel appointment process and which is separate from the Council; and (2)
prohibit Council members and investigators from membership of Fitness to
Practise Panels; and (3) require that each Fitness to Practise Panel must have
a lay member.
We support this proposal.
Provisional Proposal 9-8: Other than on those matters specified in provisional
proposals 9-6 and 9-7, the regulators should have broad powers to make rules
on the constitution of their Fitness to Practise Panels.
Provisional Proposal 9-9: All regulators should be given broad rule-making
powers on most procedural aspects of fitness to practise hearings.
We support proposals 9-8 ad 9-9, noting our earlier comments about the need for
harmonisation in key areas of regulatory work. Consideration would also need to be
given as to how this proposal would align with there being an independent
adjudicator, if one were established.
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Question 9-10: Should the statute require that fitness to practise hearings
must take place in the UK country in which the registrant is situated or
resides?
We would not support a requirement such as this, and agree with the Commissions’
provisional view that this is an area that should be left to the discretion of regulators.
While we are interested in the possibility of holding hearings outside of London,
smaller regulators may find that the costs of holding hearings in the devolved
administrations outweigh the benefits. We would, however, be interested in exploring
avenues by which regulators could potentially collaborate or share resources to
facilitate hearings in the devolved administrations.
Provisional Proposal 9-11: The statute should apply the civil rules of evidence
to fitness to practise hearings. The relevant rules should be those that apply in
the part of the UK in which a hearing takes place.
We support this proposal. Our rules have been drafted to apply this approach.
Provisional Proposal 9-12: Fitness to Practise Panels should be able to admit
evidence which would not be admissible in court proceedings if the admission
of such evidence is fair and relevant to the case.
We support this proposal. In this area we do however have some related concerns
around late service of evidence. Occasionally detailed expert evidence or statements
are served on the morning of a hearing, with the regulator not being provided with
sufficient time to respond or being criticised for delay in the proceedings when asking
for an adjournment. This may be an area worth considering further.
Provisional Proposal 9-13: The statute should require the civil standard of
proof in fitness to practise hearings.
We support this proposal. This reflects our current position.
Provisional Proposal 9-14: The statute should require that all fitness to
practise hearings must be held in public unless one or more of the exceptions
in the Civil Procedure Rules apply.
We support this proposal in principle - this reflects our current position and ensures
transparency. Our current approach is, however, that Interim Order hearings are held
in private, and we consider that this should continue.
Provisional Proposal 9-15: The statute should provide that a witness is eligible
for assistance if under 17 at the time of the hearing if the Panel considers that
the quality of evidence given by the witness is likely to be diminished as a
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result of mental disorder, significant impairment of intelligence and social
functioning, physical disability or physical disorder. In addition, a witness is
should be eligible for assistance if the Panel is satisfied that the quality of the
evidence given by the witness is likely to be diminished by reason of fear or
distress in connection with testifying in the proceedings.
Question 9-16: Should the statute provide for special measures that can be
directed by the Panel in relation to witnesses eligible for assistance, such as
screening witnesses from the accused, evidence by live link, evidence in
private, video recoded evidence, video cross examination, examination
through intermediary, and aids to communication?
We agree with the approach set out in 9-15 and 9-16 above. There are also wider
issues around witness support that need to be considered carefully, but these fall
beyond the bounds of the statute.
Provisional Proposal 9-17: The statute should require the regulators to
establish a system for imposing and reviewing Interim Orders.
Provisional Proposal 9-18: The statute should require each regulator to
establish panels of at least three members for interim order hearings
(including a lay member). In addition, Interim Order panels must be appointed
by a body which is separate to the Council and there would be a prohibition of
Council members and investigators from sitting on such Panels.
We agree with the proposals 9-17 and 9-18 above that regulators should be required
to set up a formal panel for IO hearings and agree that quorum is three. It is now
established that there should be lay panellists. We agree that there should be an
independent appointments process.
Question 9-19: Should the statute prohibit Interim Order Panellists sitting on a
Fitness to Practise Panel (either in relation to the same case or more
generally)?
We agree. This is the current position at the GOC. It is however important to ensure
that the rules are clear that a member can sit on both an application for a particular
interim order and the subsequent reviews.
Provisional Proposal 9-20: The test for imposing an Interim Order should be
that it is necessary to protect, promote and maintain the health, safety and
wellbeing of the public (and maintain confidence in the profession).
We broadly support this proposal, although only rarely would interim orders apply in
cases of maintaining public confidence in the profession.
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Provisional Proposal 9-21: On all procedural matters in relation to Interim
Order hearings (except for those specified in provisional proposal 9-18) the
regulators should have broad rule-making powers.
We support this proposal, although note our earlier comments about the importance
of a harmonised approach being taken across regulators in areas such as this.
Question 9-22: Should the statute guarantee the right of registrants to give
evidence at Interim Order hearings?
We agree that regulators should retain flexibility in this area. Our view is that the
default position should be that oral evidence is not taken, but that there is discretion
to admit it where appropriate. We believe that this reflects the different purpose of
Interim Order hearings from substantive hearings.
Provisional Proposal 9-23: The right of appeal against an Interim Order should
continue to be to the High Court in England and Wales, the Court of Session in
Scotland and the High Court in Northern Ireland.
We support this proposal.
Provisional Proposal 9-24: All Fitness to Practise Panels should have powers
to impose the following: (1) erasure from the register; (2) suspension; (3)
conditions; and (4) warnings.
We support this proposal, although note that our Fitness to Practise Committee can
currently only issue a warning if there is no finding of impairment.
Provisional proposal 9-25: The Government should be given a
regulation-making power to introduce systems of financial penalties and cost
awards.
We agree with the proposal in principle, although this is an issue which merits further
discussion. More clarity around effective financial penalties would be beneficial,
though this needs to take account of the situation of regulators dealing with
businesses.
Our general view is that costs should be used as a means of enforcement in relation
to directions. Without training and clear guidance, it may be challenging for
Committees to make safe decisions. Additionally, if regulators were to be faced with
costs claims on a regular basis, this will have a direct impact on fees.
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Provisional Proposal 9-26: All Fitness to Practise Panels should have powers
to agree undertakings and voluntary erasure.
We support this proposal. Overall, this is a sensible way forward, which is
proportionate and likely to be effective. This would echo the powers at the screening
stage, although we would note that where changes are last minute there will be cost
implications for the regulator as the panel will be empanelled.
Provisional Proposal 9-27: The regulators should have powers to introduce
immediate orders (or use Interim Orders for this purpose).
We support this proposal. We would encourage the Commissions to ensure that
power exists following a review hearing.
Provisional Proposal 9-28: The test for imposing any of the sanctions listed in
provisional proposal 9-24 and consensual disposals in 9-26 should be to
protect, promote and maintain the health, safety and well-being of the public
(and maintain confidence in the profession).
We support this proposal, which should reflect the terminology chosen in respect of
regulators’ main duty.
Provisional Proposal 9-29: The regulators should be given broad powers to
make rules in relation to the sanctions listed in provisional proposal 9-24 and
consensual disposals in provisional proposal 9-26.
We support this proposal.
Provisional Proposal 9-30: The Government should be given a
regulation-making power to add new sanctions and consensual disposals to
those listed in provisional proposals 9-24 and 9-26, and to remove any
sanctions and consensual disposals.
We support this proposal.
Question 9-31: Does the language used in the proposed list of sanctions and
consensual disposals contained in provisional proposals 9-24 and 9-26 convey
accurately their purpose?
We believe that the language is clear, although this is a question that will benefit
from the input of other stakeholders.
Provisional Proposal 9-32: The statute should require all the regulators to
establish a system of review hearings for conditions of practise and
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suspension orders. In addition, the regulators should have powers but would
not be required to establish review hearings for warnings and undertakings.
We support this proposal.
Provisional Proposal 9-33: The regulators should have broad rule-making
powers to establish the procedures for review hearings.
We support this proposal.
Question 9-34: Should the regulators be given an express power to quash or
review the decision of a Fitness to Practise Panel where the regulator and the
relevant parties agree that the decision was unlawful? If so, should
complainants and other interested parties be able to prevent or contribute to
any decision to use this power?
This proposal is attractive, in that it would save court time and expense. But there
are risks in this approach, particularly around the potential for lack of transparency.
These might be addressed by publishing the reasons for the review with the
decision. An alternative approach would be to allow regulators to appeal panel
decisions to the High Court themselves.
Provisional Proposal 9-35: All professionals should continue to have a right of
appeal against the decision of a Fitness to Practise Panel to the High Court in
England and Wales, the Court of Session in Scotland and the High Court in
Northern Ireland.
We support this proposal.
Part 10: The Council for Healthcare Regulatory Excellence
Question 10-1: How effective is the CHRE in performing the role of scrutinising
and overseeing the work of the regulators?
We welcome the CHRE’s role overseeing, auditing and advising on best practice
regulatory approaches. We believe that the CHRE can play a valuable role in
facilitating collaboration and sharing of information among regulators.
We believe that there are still areas in which the annual performance review process
could be made less onerous and more targeted around risks and performance
issues, particularly for smaller regulators. This is, however, an area that CHRE is
aware of, and it has been working with regulators to refine that process, and the
fitness to practise audit. The results of these reviews do provide a valuable
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opportunity for reflection on performance and learning from the work and experience
of other regulators.
Provisional Proposal 10-2: The current powers and roles of the CHRE
(including those introduced by the Health and Social Care Bill 2011) should be
maintained in as far as possible.
We support this proposal. We believe that the scope of the CHRE’s role is
appropriate.
Provisional Proposal 10-3: Appointments to the CHRE’s General Council
should be made by the Government and by the devolved administrations.
Appointments would be made in accordance with the standards for
appointments to the health and social care regulators made by the CHRE.
We support this proposal.
Provisional Proposal 10-4: The CHRE’s general functions should be retained,
but modernised and reworded where appropriate.
We support this proposal.
Question 10-5: Is the CHRE’s power to give directions still necessary?
This power has never been utilised, and given the powers of intervention that are
proposed to be held by the Government it may be questionable whether CHRE’s
power is required. The value of such a power will depend on the nature and scope of
CHRE’s role in the future.
Provisional Proposal 10-6: The existing power for Government to make
regulations for the investigation by the CHRE into complaints made to it about
the way in which a regulator has exercised its functions should be retained.
We support this proposal.
Question 10-7: Should the CHRE’s power to refer cases to the High Court in
England and Wales, the Court of Session in Scotland and the High Court in
Northern Ireland: (1) be retained and exercised alongside a regulator’s right of
appeal, in cases when the regulator’s adjudication procedure is considered to
be sufficiently independent; or (2) be removed when a regulator’s right of
appeal is granted in such circumstances; or (3) be retained and rights of
appeal should not be granted to regulators, although regulators should have a
power to formally request the CHRE to exercise its power?
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The answer to this question will depend on the approach taken to the separation of
investigation and adjudication. Should there be further separation of adjudication, it
would be more appropriate for regulators to have the right to appeal decisions in
their own right - indeed, we believe that there is an argument for this right to be
available to regulators under existing fitness to practise systems.
Part 11: Business regulation
Question 11-1: To what extent does regulation in a commercial context make a
difference to how the regulators approach the task of professional regulation
and does the law provide adequately for professional regulation in a
commercial context?
The commercial context of service provision may make some difference to the work
of professionals and the task of regulators. It remains to be seen, however, whether
these factors would be more or less significant than those pressures experienced
within the NHS, e.g. on GP practices, care homes or within hospitals.
The optical sector is highly commercialised by the standards of most healthcare
sectors in the UK, and areas of dispensing optics are partially deregulated. In our
sector, the commercial context of service delivery might manifest in a range of ways
in areas such as the range of products and services available, use of locums or
optical assistants, advertising of services, support for professional development and
training students, supervision arrangements, clinical governance arrangements, the
arrangement of practice settings for clinical work, and so on.
If unchecked, it is possible that commercial pressures could in some circumstances
compromise the provision of good quality healthcare, although we would note that
commercial pressures could equally assist in maintaining quality in the professions.
We do not, however, have evidence that there is reason for concern around
commercial pressures affecting the work of individual professionals. While there is
some anecdotal evidence that commercial pressures exist in our professions (as
they do in other professions), we do not have evidence that this is widespread or
negatively impacts on health outcomes for patients. In the context of this legislative
review, however, this is an area that we believe merits further investigation. We
intend to work with our stakeholders to explore these issues further over the coming
months.
In response to the second part of the question, we believe that there are areas in
which the existing legislative framework may not be ideal. This is in respect of the
framework in place for regulating businesses, rather than in respect of the
regulation of individual professionals.
Businesses in the optical sector are relatively lightly regulated by the GOC. Under
the current legislative framework, the GOC does not act as a regulator of all
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commercial primary ophthalmic practice in the UK. This is primarily because the
Opticians Act focuses on protecting the use of restricted titles by corporate bodies,
rather than adopting a comprehensive approach to the regulation of restricted
services. Partly as a result, there are limitations on our ability to enforce standards
of business practice effectively across all UK providers.
Where businesses are registered with the GOC, we can and do take action where it
is identified that a businesses has breached our standards. At the extremes,
however, the effectiveness of GOC sanctions can be limited in an environment
where businesses could restructure to avoid registration requirements, and continue
operating. We also lack powers available to other systems regulators, and the
financial penalties available to the GOC, although greater than other health
regulators with the ability to impose fines up to £50,000, are modest relative to the
turnover of a large corporation.
In regards to be broader regulatory framework, primary ophthalmic services are also
exempted from regulation by the Care Quality Commission (because the
professions do not meet the CQC risk thresholds). Opticians in practices offering
NHS services are required to meet the requirements of their commissioning body
(e.g. a PCT), but NHS monitoring can be inconsistent around the UK (although it is
intended that this will be remedied by the Government’s current reforms and
imposition of a single operating model).
We believe that the regime for the regulation of individual optical professionals is
broadly appropriate. As noted in our overall comments on the consultation,
however, we believe that the establishment of a new statutory framework for
professional regulation provides an opportunity to reassess the existing balance of
regulatory arrangements for optical businesses. This is explored further below.
Provisional Proposal 11-2: The statute should retain the existing premises
regulation regimes of both the General Pharmaceutical Council and the
Pharmaceutical Society of Northern Ireland.
We have no comments on this issue.
Question 11-3: Are any further reforms needed to the premises regulation
regimes of the General Pharmaceutical Council and the Pharmaceutical
Society of Northern Ireland?
We have no comments on this issue.
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Question 11-4: Should the statute retain the existing systems for the regulation
of bodies corporate?
As indicated in our response to question 11-1 above, we believe that there may be
scope for the new statutory framework to contain provision for a more clear, modern
and proportionate system of business regulation. This is, however, an area that
requires additional evidence and analysis, to ensure that any potential changes are
necessary, appropriate, and do not create unnecessary disruption or uncertainty.
We would be interested in working with the Law Commission, other regulators and
our stakeholders on ways that the new statute could more appropriately reflect and
respond to the nature of commercial provision in the health sector now and in the
future and to levels of risk.
In that regard, we are interested in exploring whether there would be benefits in a
model of GOC business regulation being introduced that is based on the regulation
of all providers of the services protected under the legislation, regardless of their
business structure (with the possible exception of sole traders who are already
individual professional registrants, to avoid unnecessary dual registrations).
As noted previously, the limitations of the GOC’s current business regulation
framework mean that significant parts of the business sector are not subject to GOC
regulation, and GOC business regulation is currently light-touch relative to some
other regulatory models. We are also aware the existing system can create
confusion for business owners, individual registrants and other employees, and the
public as to the purpose of our regulatory approach. We therefore believe that there
might be benefits for public protection in ensuring that all commercial providers of
primary ophthalmic services are subject to the same regulatory framework, and that
standards of safe practice are able to be effectively enforced across the whole
business sector.
On the other hand, we are very conscious that any changes to the system of
business regulation should be a necessary and proportionate response to any risks
to public health and safety posed by business practices, and should not create
unnecessary compliance costs or disruption for the sector. Moreover, as noted in
our response to question 11-1, the evidence in respect of the specific risks posed by
optical sector businesses or harm caused by poor business practice is at present
very limited.
It is therefore possible that our current light-touch regulatory approach, in which the
business sector is in many respects essentially self-regulating, is an appropriate
reflection of the nature of the sector. If that is the case, it might not be necessary for
the GOC to take on a more comprehensive approach to business regulation, and
we would be interested in exploring ways in which the regulatory regime could
minimise unnecessary costs for businesses. Regardless, we would suggest that
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work is required to establish what type of business regulation regime should be
included in the new statute.
We believe any system included in the statute should be clear and flexible enough
to be potentially applicable across regulators should it be appropriate for them to do
so in the future. Given the potential impact of any changes in this area, we would
suggest that this might be an area where an approach consistent with that set out
elsewhere in the legislation could be adopted, in which the Government is given
powers to activate business regulation powers for any regulator by means of
regulations, including the GOC.
Question 11-5: Should the regulators have powers to finance or establish a
complaints service?
The GOC has this power under the Opticians Act, and would wish to retain it. The
GOC funds the independent Optical Consumer Complaints Service (OCCS) to
mediate complaints relating to optical goods and services provided by registrants
(but where a practitioner’s fitness to practise, or a business registrant’s fitness to
carry on business, is not in question).
We believe that there is value for the regulator, registrants and for the public in
having a mediation service in place where the sector is highly commercialised. For
the regulator, it provides a clear avenue for directing complaints regarding poor
products or services but not regarding fitness to practise. This helps minimise the
number of minor complaints that regulators deal with and provides a way of helping
satisfy complainants that their concern can be dealt with quickly and effectively. The
work of the OCCS can also be a useful contributor to our own work in setting
standards and producing guidance for registrants on good practice. In our view, the
independence of the complaints service provided by the OCCS is also a positive.
While there are other avenues for consumer protection available, we believe that in
our sector an approach based on mediation is valuable, and regulators can have an
appropriate role in supporting such a service. We would note that regulators may in
future want to share resources on such a service, and the statute should allow for
that possibility.
Provisional Proposal 11-6: The Government should be given a regulationmaking power to extend to any regulator the powers given to the General
Pharmaceutical Council or the General Optical Council to regulate businesses.
We support this proposal. Given the evolving nature of service provision in the health
sector and the extensive changes planned across health sector delivery and
regulation, we believe that it would be appropriate for the statute to contain provision
for other regulators to be given powers in respect of business entities and individual
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premises. Given the potential impact of changes to regulatory approaches in this
area, we agree that it should be for the Government to extend these powers to
regulators.
As noted in our response to question 11-4, for the purposes of consistency and
flexibility, we would suggest that the approach to activating these powers should be
consistent with the approach elsewhere in the statute, for instance in respect of
student registration. It might be appropriate for the statute to set out a range of
registration and other powers that could be made available to any regulator by
means of regulations made by the Government, including the GOC. This is as
opposed to setting out specific business and premises registration regimes for
individual regulators in the statute itself.
Part 12: Overlap issues
Question 12-1: How could the legal framework establish clearer interfaces
between the various regulatory systems?
There are limitations in the ability of the statute to attempt to consolidate further the
different regulatory systems into a single framework, and we believe that the duties
to cooperate and act transparently set out in the proposals in the consultation would
be sufficient.
A particular area of complexity is the relationship between professional and systems
regulators, particular for regulators such as the GOC that also have some systems
regulation responsibilities. See our comments on the nature of the framework in
place for business regulation in chapter 11.
Question 12-2: What practical difficulties arise as a result of parallel criminal
and fitness to practise proceedings?
Fitness to practise proceedings will generally be stayed until criminal proceedings
are concluded, which extends the length of the fitness to practise process. Protection
for the public can be ensured through Interim Orders, although the impact of this on
registrants can be significant given the length of time of criminal cases.
Question 12-3: What are the practical and legal difficulties associated with
joint working?
There are a number of practical difficulties associated with joint working, including
systems integration and timing of decisions. Exchange of information is generally
relatively straightforward, as long as the parameters and processes are agreed in
advance. Legal difficulties would potentially be addressed proposal 12-4 below. Joint
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working can have the potential to increase speed and efficiency though shared
systems or processes, or by making some approaches more viable for all regulators
than they might otherwise be, especially for smaller regulators.
Provisional Proposal 12-4: The statute should include a permissive statement
to the effect that each regulator may carry out any of its functions in
partnership with another organisation.
As above, we support this proposal.
Provisional Proposal 12-5: The statute should enable formal partnership
arrangements to be entered into between any regulator and one or more other
organisations (including the other professional regulators) in relation to the
exercise of their statutory functions. The statute should provide that any such
arrangements do not affect the liability of the regulator for the exercise of any
of its statutory functions.
We support this proposal.
Provisional Proposal 12-6: The statute should impose a general duty on each
regulator to make arrangements to promote cooperation with other relevant
organisations or other persons, including those concerned with the:
(1)
(2)
(3)
(4)
(5)
employment of registrants;
education and training of registrants;
regulation of other health or social care professionals;
regulation of health or social care services; and
provision/supervision/management of health or social care
services.
Question 12-7: Should the statute specify or give examples of the types of
arrangements that could be made under provisional proposal 12-6?
Provisional Proposal 12-8: The statute should impose a specific duty to
cooperate, which would apply when the regulator in question is:
(1)
(2)
(3)
(4)
considering registration applications and renewals;
undertaking the approval of education and training;
ensuring proper standards of practice and conduct; and
undertaking an investigation into a registrant’s fitness to practise.
This duty would apply to the same list of organisations and persons contained
in provisional proposal 12-6. The requested authority would be required to
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give due consideration to any such request made by the regulator, and if it
refuses to cooperate, must give written reasons.
Question 12-9: Are there any other circumstances in which the specific duty to
cooperate contained in provisional proposal 12-8 should apply?
We support the spirit of the approach proposed in 12-6 to 12-8, and value
cooperation with other organisation where it supports our role. We particularly
welcome the proposed duty to cooperate in 12-8. We would possibly favour more a
permissive statement in the statute rather than a specific requirement to make
arrangements for cooperation. We would be wary of a substantial bureaucracy of
partnership working arrangements that are either resource-intensive to maintain or
are not supported by concrete activity. Similarly, we would question whether it would
be appropriate for the statute to set out example arrangements, as this might
promote inflexibility.
Part 13: Cross border issues
Provisional Proposal 13-1: The statute should require the regulators to specify
in rules which qualifications would entitle an applicant to be registered,
including overseas qualifications.
While we recognise the importance of there being clear processes and rules around
entry to the register, we would not support a proposal that all regulators should
specify all qualifications in rules, including overseas qualifications.
This may be appropriate for those professions who are subject to automatic
recognition under Directive 2005/36/EC, but would have the potential to create a
highly bureaucratic process for regulators under the general system of recognition if
it were proposed that any European qualification that could entitle an applicant to be
registered should be recorded in rules. We believe that it would be more appropriate
for rules to set out the process for assessment and recognition of applicants’
qualifications.
Provisional Proposal 13-2: The default powers of the Government should
include the ability to intervene in cases where there is likely to be or has been
a failure to implement the Qualifications Directive properly.
We are unclear why this power would be required in the statute, as the Government
already has responsibilities and powers to require regulators to comply with
European Directives. We would be interested there being more clarity as to the
circumstances in which such a power could be activated.
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Provisional Proposal 13-3: The statute should include broad powers for the
regulators to register those from non-EEA countries, including powers to set
requirements as to the language, practice and education requirements.
We support this proposal, which reflects our existing powers.
Question 13-4: Would there be benefits in the same regulatory arrangements
applying in the Channel Islands and the Isle of Man? If so, would the best way
to achieve this be parallel legislation or a single statute?
Question 13-5: How could the new legal framework address the interface
between the regulatory systems in the UK and the Channel Islands and the Isle
of Man?
We have no comments to make in these areas (13-4 and 13-5), other than to say
that the current process by which practitioners in these jurisdictions are required to
be GOC-registered has not caused problems to date.
Provisional Proposal 13-6: The regulators should be given an express power
to approve and accredit overseas education institutions and courses and
issue rules and guidance for the purpose of such activity.
Question 13-7: What are the practical difficulties which arise as a result of the
requirement to quality assure UK qualifications which are awarded by
institutions based overseas?
We support the proposal in 13-6. The GOC currently has this power, and would wish
to retain it.
The expense of assurance is the ultimate issue, along with some difficulties around
language, the cultural context of training, and differences in local health systems. We
would appreciate flexibility in our approach in this area, including possibly the option
of appointing others to perform quality assurance functions.
Question 13-8: How might our statute enable the regulators to manage the
issues that arise from distance service provision?
Our existing accreditation and quality assurance powers are sufficient for us to
manage distance learning provision and we do have many such courses. As long as
we retain equivalent powers to what we have now, distance learning is not a
problem.
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