Good medicine

In his review of the legal regulators, Clementi might do well to look at the well-established medical model. Matthew Lohn reports

Even the most casual observer of the legal press will have noted the Law Society’s recent decision to acknowledge the desirability of creating a greater separation of its representative and regulatory roles. The catalyst for this resolution was a debate on the society’s response to the Clementi review (see below). Some of the regulatory models put forward by Clementi address the issue of separating the functional roles, but they also challenge the mechanisms of governance and supervision of the profession.

Much has been written questioning the necessity of the proposed reforms and eloquent statements have been made about the need for an independent legal profession. What is certain is that there will be change. Lawyers trying to anticipate what the future holds for legal regulation would be wise to review the recent changes to the governance of healthcare professionals, where significant modifications have been taking place in the delivery of professionally-led regulation.

To review the professions in context, it should be remembered that the Law Society is not unique in undertaking both representative and regulatory functions. Other professions, notably those set up by royal charters, including accountants and surveyors, retain both functions. In contrast, many of the healthcare professions have longstanding experience of the separation of the two functions. The medical profession was divided by the mid-19th century, with the British Medical Association being set up more than 20 years before the first General Medical Council (GMC) was created by the Medical Act 1858. Similar divisions exist for the nursing and dental professions.

Despite this apparent separation, many of the regulators responsible for the supervision of the healthcare professions are currently subject to unprecedented examination as to the discharge of their functions. In the face of this scrutiny, the GMC has been keen to emphasise the positive benefits of professionally-led regulation. In its press briefings, the GMC acknowledges the balance to be struck between the ownership of regulation by the profession and the need for openness, transparency and integral lay involvement. The GMC also provides a reminder of what is an often-forgotten element of professionally-led regulation – that much work is undertaken establishing standards that professionals work to and that disciplining professionals is only one part of regulation.

Such statements will no doubt be considered by Dame Janet Smith during part four of the Shipman Inquiry, which is examining, amongst other matters, the disciplinary processes operated within the NHS and by the GMC. Even before her final report and recommendations are made, the autonomy and practice of the bodies that regulate the healthcare professions are being materially affected by a new statutory body responsible to Parliament, the Council for the Regulation of Healthcare Professionals (the council). This is another layer of regulation created by central Government for the health service, this time in the form of an overarching regulator to regulate those bodies regulating the healthcare professions.

The idea of an overarching body was first considered by Sir Ian Kennedy in 1999, following the Bristol Royal Infirmary Inquiry, which examined the events surrounding the quality of paediatric cardiac surgery at the hospital. Following further mention in ‘The NHS plan for England’ in 1999, the new council was created by the NHS Reform and Health Care Professions Act 2002. There are potential parallels for the legal profession, as both the Clementi regulatory models B and B+ describe a similar structure of central oversight of existing professional bodies.

The council has positive duties given to it in legislation, including the promotion of the interests of public and patients and the development of best practice in professionally-led regulation. How will this be achieved? The answer is revealed within the detail of the legislation, which makes a theoretically draconian set of powers available to this new regulator of regulators. At the more genteel end of its supervisory powers, the council may recommend to a regulatory body changes to the way in which it performs any of its functions. More direct control is provided by Section 27(2) of the NHS Reform and Health Care Professions Act, which allows the council to “give directions requiring a regulatory body to make rules (under any power the body has to do so)”.

These directive and coercive powers have yet to be used, but that is not to say the new organisation is dormant. Section 29 of the act allows the reference of disciplinary cases to the High Court or Court of Session, where the council believes a disciplinary decision by a regulator has been unduly lenient and that it is in the interests of the public for the case to be referred. As regulators are already responsible for the prosecution and decision-making elements in disciplinary proceedings, the ability to appeal a decision made by one of their disciplinary committees prior to the enactment of Section 29 has not generally been constitutionally or legally possible. This has created an apparent mismatch, whereby a professional can appeal against a decision, but there has been no ability to intervene in decisions that were otherwise appealably wrong. The new statutory power provides a solution to this problem.

The council has now referred six cases – five from the GMC and one from the Nursing and Midwifery Council – to the High Court. Two of those cases are awaiting further deliberations before the Court of Appeal, one on the meaning of the legal test that should be applied when considering appeals under Section 29, and the other in considering the breadth of the scrutiny that should be allowed by the council in challenging a regulator’s decision.

The cases have raised considerable interest among those who work within healthcare regulation, as the operation of this new power by the council affects both the regulator and the regulated professional. Defence lawyers acting for professionals now have a new challenge. The disciplinary process for their clients is no longer concluded before the regulatory tribunal. A further period of anxiety now exists until an additional four weeks have elapsed after their client’s right of appeal has expired. Only at this point can they advise their client that their case has finally been closed.

For those acting for the regulators and the new council, different challenges are created by the consequences of litigation involving the review of a tribunal decision. Potential complications arise as the original jurisdiction and disciplinary scheme of the regulator are subjugated by the framework of the Civil Procedure Rules. In addition, the range of settlement options, which although perhaps are just and suitable for civil disputes involving two parties, nevertheless take on a different complexion when tripartite public interest litigation
is undertaken.

Theoretical outcomes now exist that could challenge the primacy of the relationship between professional and regulator. It is unlikely that this is the intended consequence of those who created the legislation, but it serves as a timely reminder to the architects of the new legal regulatory framework that it is not only the structure of the supervisory mechanism that requires close scrutiny, but also its operational function.

The Clementi Review
In 2003, the Department for Constitutional Affairs published the ‘Competition and Regulation in the Legal Services Market’ report. It concluded that the current regulatory framework in England and Wales was outdated, inflexible, too complex and insufficiently accountable or transparent.

Sir David Clementi was subsequently commissioned to review the regulatory framework for legal services in England and Wales. As part of the review, a consultation paper has been published examining the regulation of the legal profession, including discipline and complaints procedures.

Three alternative regulatory models have been proposed in the consultation paper: model A, a single unitary Legal Services Authority, regulating all legal services; model B, which involves more limited reform with regulatory functions kept in the hands of the existing professional bodies, but with central oversight over all these organisations; and model B+, which is similar to B, but with the regulatory bodies splitting their regulatory and representative arms.
The terms of reference state that recommendations should be made by 31
December 2004.

Matthew Lohn is a partner and head of the public and regulatory law group at Field Fisher Waterhouse