Health check

The overhaul of healthcare regulatory procedures has fundamentally changed the way the sector is regulated in the UK. Regulatory bodies have been given greater powers of investigation, the form of the allegation against the practitioner has changed, and there is an increased range of sanctions available.

With an apparent increased propensity of the public to complain, the greater powers of investigation given to regulatory bodies, and the wider range of allegations that can be considered, it is only to be expected that the volume of cases before fitness to practise committees will increase considerably.

It is now crucial that lawyers who advise in cases before these committees acquaint themselves with recent developments.

In part, the overhaul of the regulatory schemes has been driven by the implementation of the Human Rights Act, which has required the various healthcare regulators to introduce greater rigour into their fitness to practise proceedings. However, the main driver for change has been a realisation that the existing machinery has proved simply insufficient to protect patients or maintain public confidence in the healthcare professions.

Two reviews, led by the Chief Medical Officer Sir Liam Donaldson and the Director of Workforce at the Department of Health Andrew Foster, are currently undertaking a root and branch assessment of the way in which our healthcare professions are regulated. They are expected to report by the end of the year.

However, significant change has already been effected by the use of Section 60 of the Health Act 1999 to reform radically the legislation that governs these professions. The fitness to practise proceedings of four of the professions have now been significantly altered by the introduction of so-called Section 60 orders and two more are anticipated shortly.

Fit to practise?
These orders have introduced a more holistic approach, focusing on the concept of impairment of fitness to practise, instead of compartmentalised allegations, such as ‘serious professional misconduct’, ‘seriously deficient performance’ and poor health, although these remain as categories of impairment. Indeed, the General Medical Council (GMC) has replaced its three separate committees – professional conduct, health and performance – with a single fitness to practise panel.

Accompanying these changes is an increased range of powers available to the regulatory body. These include the power to impose orders for interim suspension or interim conditions on registration, pending the disposal of the case. Where a practitioner’s name has been erased from the register, there is now – save in the case of the General Optical Council (GOC) – a bar on applying for restoration for five years.

Lawyers need to be aware that the new orders also give the regulatory bodies greater powers of investigation. In addition to the standard power to issue witness and documents summonses, there are specific powers to require the production of documents and information from third parties.

The latest of these orders backs up this power with a right to apply to the county court to enforce a disclosure order. In relation to some of the regulator’s procedures to assess poor performance or lack of competence, there are quite draconian powers of search and entry, and seizure of documents, exercisable by warrant.

A new over-arching regulatory body
A major development has been the creation in April 2003 of the Council for the Regulation of Healthcare Professionals, now known as the Council for Healthcare Regulatory Excellence (CHRE). The CHRE has been instrumental in the development and adoption of indicative sanctions guidance by the various regulators. This document gives guidance to the committees on the appropriate sanctions to apply in particular types of cases.

The CHRE has been concerned to identify and disseminate ‘best regulatory practice’ and to push for harmonisation of process and sanctions available to all regulators. The CHRE also has power, under Section 29 of the NHS Reform and Health Care Professions Act 2002, to refer decisions of fitness to practise committees that it considers to be ‘unduly lenient’ or that ‘should not have been made’ to the High Court. The concept of ‘undue leniency’ includes cases of ‘under prosecution’, in which relevant material was not placed before the fitness to practise committee at the time of the hearing.

Implications for lawyers
Pending judicial definition of ‘impairment of fitness to practise’, lawyers will have to grapple with the difficulties of definition discussed by Dame Janet Smith in the fifth Shipman Inquiry report. They are also likely to encounter fitness to practise committees playing a more proactive role in the presentation of cases before them in light of the Court of Appeal’s judgment in CHRP v Truscott, Ruscillo v CHRP (2005).

A welcome development is the emphasis on questions of case management in the new rules governing the fitness to practise arrangements of the healthcare regulators. Some regulators provide for case management conferences, directions and measures for vulnerable witnesses that mirror those used in the criminal courts.

Lawyers appearing before regulatory bodies need to be aware that the Section 60 orders governing the GMC, in respect of registration appeals committees, and the GOC, in respect of disciplinary committees, now provide a costs sanction. This may be a foretaste of further similar developments.

With one eye on the possibility of a CHRE referral and the other on the possibility of a practitioner appeal, it is now ever more crucial for lawyers who advise in cases before the various fitness to practise committees to be aware not only of the numerous recent legislative developments, but also the burgeoning case law in the field that governs all aspects of proceedings, from sanction and decision making to the giving of reasons and the role of the legal assessor.

Joanna Glynn QC is a barrister at 23 Essex Street and David Gomez is a barrister at Lincoln’s Inn.