Response by the Socialist Health Association to The regulation of the non-medical healthcare professions: a review by the Department of Health, and Good doctors, safer patients: Proposals to strengthen the system to assure and improve the performance of doctors and to protect the safety of patients July 2006
The Socialist Health Association was founded in 1930 to campaign for a National Health Service and is affiliated to the Labour Party. We are a membership organisation with members who work in and use the NHS. This submission is made on behalf of the Association.
1. We welcome the general direction of these two reports, but were saddened that there had to be a separate one for doctors. We also felt that they could have gone further, although we recognise the complexity of the issues involved, and the need to address many conflicting interests and concerns. Despite the manifest inadequacy of the existing systems of regulation and the immense sums of money which have been spent on repeated enquiries resulting from their failures the changes proposed are less fundamental than appears to us to be appropriate. Despite its length Sir Liam’s report is short of logic to justify its proposals. Harold Shipman is frequently mentioned but there seems no clear link between the findings of the report into his activities and the proposed course of action. As far as one can tell Harold Shipman was a competent and popular doctor who would have had no difficulties with anything now proposed. In any case we do not think it is sensible or practical to set up a system of regulation which is partly designed to catch a clever psychopathic professional in the absence of any evidence that there are more like him. We want a single system of regulation which applies to all health and social care professionals and is governed by one set of legislation across the whole of the UK and which can be easily understood by everyone. We believe that the roles of workers in both the health and social care sectors are increasingly overlapping and becoming more fluid so there should be a single system of regulation. There would be economies of scale to be made, and it might be possible to devise a system of fees on a basis which related to the earnings of the various professions. Many of the recent failures have been a mixture of weak, or non-existent, local arrangements, and confused understanding of who would take action. A single system would be much better able to cope with problems arising from the development of new professions and of specialisation within existing professions. Simpler legislation would be easier to understand and could be made more flexible as is needed in an era where professions and specialisms develop and mutate quickly. It is not necessary for each profession to have its own Act of Parliament in order to demonstrate its autonomy.
2. Given the free movement of labour within the EU & the mutual recognition of EU professional qualifications it would make good sense to have a single EU-wide regulator for all health and social care professionals. It is certainly no longer possible for the UK to conduct its regulatory system as if it were self-contained. Nor is it politically acceptable for us to recognise European qualifications and experience but discount experience and qualifications gained outside Europe.
3. We see a continuing role for each profession to establish standards of professional competence across Europe within its sphere of expertise and to decide, if necessary, whether entrants to the profession or those who competence is called into question have reached the necessary standard. We do not want to see the standards of professional competence in any profession determined by the state. But there must be involvement of lay people and patients in setting the standards and in monitoring those standards both in practice and in educational institutions. We do want to see a system which ensures that the standards espoused by leading members of each profession are translated into systems which are reliably enforced.
4. There should be one appointments process for all members of the UK professional regulatory bodies, both registrants and lay, which should be handled by the NHS Appointments Commission, or another independent body. Both registrant and lay members should be appointed, not elected. Appointment should be against a set of criteria. There should be no need for alternates for registrants if they are appointed rather than elected. Much more effort needs to be devoted to ensuring that decision making bodies represent the diversity of registrants and that the lay members represent the diversity of the population.
5. There is little mention in either of these weighty documents of the systems for dealing with patients’ complaints or those for involving patients and the public. (We use the word patients throughout to mean those, however designated, at the receiving end of the work of a professional). The impression is still that the systems of regulation are provided for the benefit of the professional staff, not for the patients.
6. It is apparent that few complaints by patients come to the attention of the regulatory bodies. Most of their work is generated by other professional staff. In our view this is not because patients have no complaints, but because the procedures established to deal with patient complaints are impenetrable and have no real link with the regulatory system. We accept that patients may make unfounded, ill-informed or inappropriate complaints, but this is not a good reason for ignoring the possibility that their complaints may be well founded. Complaints should be encouraged if there is a genuine desire that the health service should learn from them. At present most patients do not complain when it appears that things have gone wrong either because they are afraid that their subsequent treatment will suffer (and there is evidence that such a belief is well founded, especially in primary care) or because they think it is a waste of time. We should aim for a system which regards an increase in the number of complaints as an indication that the system is working properly. Patients who are disadvantaged are less likely to make complaints than those who are better placed, although they are probably more likely to be on the receiving end of poor practice. We would like to see monitoring of the social and ethnic characteristics of complainants (and also of those subject to complaint) and measures for increasing the proportion from disadvantaged groups.
7. The systems for dealing with concerns that things have gone wrong, whether or not they are described as complaints or clinical negligence or something else entirely must be joined up. If this means reducing the number of separate organisations with responsibilities in this area then that should happen. Too often when we meet a person who has been on the receiving end of some unfortunate episode the process of trying to work out which one of a myriad of organisations was the most appropriate to deal with the problem, and the Byzantine complexity of pursuing a complaint, has been as damaging to them as the original incident.
8. We do not see a good reason for treating the regulation of doctors as something entirely separate from the regulation of all other professionals. The days when doctors were entirely autonomous and all other staff were subservient to them have gone. From the patient’s point of view the doctor is part of a team. When things go wrong this is often because of poor communication between professionals. We would want to see systems which permit investigation of all those involved in an incident if things go wrong. It is clear from the findings of the various enquiries that while doctors were culpable there were often other professionals implicated, if only for inaction. We would like to see some link in this area to the Ombudsman and the Principles of Good Administration.
9. We suggest that there are many areas across all health and social care professional practice, including that of doctors, in which common standards apply. We would like to see a common code of ethics and conduct established which could apply to all caring professions and common procedures for dealing with breaches of that code. It should not be necessary for each profession to decide individually whether it is acceptable for its members to exploit or abuse patients or to make racist remarks about their colleagues. This code should be incorporated into person specifications and job descriptions for all professionals and staff, as it will enable employers to deal more effectively with unacceptable behaviour in annual appraisals and other best human resource practice. Implementation of these procedures will support the evidence gathering processes undertaken by the regulator if a case has to be referred to them.
10. The idea of a separate process of fact finding which could be carried out locally and quickly is attractive. This is a difficult task which is best carried out quickly by people who are not closely involved in the institutions involved. We do not see that members of professional bodies necessarily have forensic skills. The present processes for dealing with professionals who have needed investigation are often slow and cumbersome and this is bad for both patients and professionals. A single local process for establishing the facts of a case which applied to all health and social care professionals would make it a lot easier for patients to see how they could complain. In some cases it is quite clear on the basis of admitted facts that the person can no longer practice, but decisions are often delayed for years while other processes are carried out. We think that there is merit in adjusting the standard of proof, if facts are in dispute, in the light of the seriousness of the allegations and their consequences. We are not convinced that placing more reliance on employers to carry out investigations is likely to be a successful strategy. Employers have their own interests to consider and struggle to deal fairly with senior staff who are subject to investigation. Managing underperformance, or dangerous practice by professionals and ensuring compliance with employment legislation and regulatory procedures is a highly skilled task, and most Directors of Nursing and Clinical Directors will only have to deal with a few cases in their professional lives. Support to undertake this work appropriately (such as that offered by the National Clinical Assessment Service) must be made more widely available particularly as more and more health professionals will be employed outside the NHS. Some employers send cases to the regulatory bodies because they cannot manage the situation themselves. If we have a more diverse range of providers the capacity of employers to manage will also become more diverse. It should also be noted that some professionals appear before their regulatory body because of systems failure, or inappropriate demands by employers which present conflict with their code of conduct. In these cases sharing of information both in the collection of evidence, and in the judgement of the facts with the HealthCare Commission for instance, should be encouraged to ensure fairness to individual registrants, but also to protect patients and the public.
11. As far as adjudication goes we suggest that the regulators should fund the Council for Health Regulation Excellence to manage the adjudication process with the hearing panels being drawn exclusively from a single central pool trained by CHRE and working to common rules, procedures and sanctions. The fees charged to registrants might relate to the numbers of costs of hearings in their particular area of expertise. The regulators would have a clear role in working with CHRE about their own registrants to ensure that the evidence was judged against the competencies agreed by the regulator for that particular area of practice. This separation of function would ensure that the regulators focused on their key roles of setting standards for training, and placing people who have achieved the standard on the register which in effect is the licence to practice in that profession. The regulators should also be ensuring that they have systems in place to keep up to date with rapidly changing practice in the workplace, and that they have working relationships with organisations and employers so that high standards can be maintained and developed. Their role in continuing professional development and re-validation (however this is done) will be crucial so that the public can have confidence that people who have been placed on the register and whose registration is regularly renewed are competent and safe to practice. This would also end the involvement of members of the professional councils in the judgement of fitness to practice cases which can take up an inappropriate amount of their time, and, at the moment, we do not have the evidence that council members have the necessary forensic skills to undertake this work.
12. The regulation of health and social care professionals must be separated from the management of the National Health Service. We do not want to see different standards or different procedures depending on who employs the staff. We cannot see any good reason for separate regulatory procedures for staff who are not employed by the NHS or for different procedures reflecting the increasing divergence across the NHS in the four different nations.
13. We want to see an end to the system which excludes professionals, doctors most commonly, from the normal processes of performance management. No-one should have the right to prevent information about their performance at work being subject to scrutiny. The appraisal arrangements for doctors as well as other professional staff should be used for performance management. A professional may be inefficient, uncooperative, wasteful or lazy without bringing his or her fitness to practice into question. But this does not mean that continued employment should be guaranteed. Many patient complaints are concerned with this sort of poor behaviour which should be dealt with as an employment issue, just as it would be with unqualified staff.
14. If continuing training, professional development and reaccreditation are to become mandatory it will be necessary to ensure that an external body is in a position to insist that it happens and is prepared to prevent people from practicing if they do not comply. This cannot be done by the employer because we know that employers will use training budgets to tackle other more pressing problems if they can. There will be substantial costs to be borne and it is not clear who is expected to carry them. We would like to see a system of revalidation developed which can be applied to all health and care professionals. Reaccreditation and professional development belong to the regulators, with the CHRE being used to bring together core elements to maintain consistency about team working, communication skills, and all the general standards of a professional, while the individual regulatory body deals with the specialist nature of the particular profession. This is and should be their key role and it is one where far more time, resource and effort should be placed. This is not only important in terms of protecting patients, but is also a resource issue. If high standards for training leading to a licence to practice are not in place then incompetent and unsafe practitioners will continue to put patients at risk, or cause distress by their behaviour, and employers and colleagues will spend time and resource trying to manage them. The cost of removal from the registrar is high in terms of staff morale, employers’ time and money and costs to the regulators in terms of legal fees and other resources. Any system of revalidation needs to take account of the realities of professional life. It needs to be flexible enough to cope in particular with staff who move and work across international borders. It is high time we abandoned the fiction that professional experience is only valid if it takes place in Europe or America. A person employed as a cardiologist, or as a speech therapist specialising in work with small children needs to be accredited in their current area of expertise (and possibly restricted from straying outside it). Information about revalidation and areas of expertise should be made available in public registers.
15. The role of the National Clinical Assessment Service should be developed to deal with all concerns about impaired fitness to practise across all regulated professions. An underperforming nurse or therapist should not be denied help which is made available to doctors.
16. The question of whether people can speak English is distinguishable from their professional competence and should not be dealt with by the same procedures. The present systems for testing English language are part of a racially discriminatory system which has been very successful in ensuring that black people are kept out of high status jobs and that professional experience outside Europe is devalued. They also ensure that many of our citizens are denied access to a professional who speaks their language. That is not to suggest that ability to communicate with colleagues and patients is not critical, only that we can no longer assume that all concerned speak English. It is not acceptable that people who speak Latvian are to be accepted as suitable for employment despite their lack of command of English, but people who speak Somali are prevented from practising here despite a clear need for their expertise in their community. The procedure for European nationals should be followed in respect of all other applicants for professional recognition: “Member States may require migrants to have the knowledge of languages necessary for practising the profession. This provision must be applied proportionately, which rules out the systematic imposition of language tests before a professional activity can be practised. It should be noted that any evaluation of language skills is separate from the recognition of professional qualifications. It must take place after recognition, when actual access to the profession in question is sought.”
17. Lay people should be in a majority in all decision making bodies, including the CHRE. They should be treated as equal in all respects as compared with registrants. They should be enabled to meet separately if necessary and given support to ensure they are not disadvantaged as compared with members of the profession concerned. Consideration should be given to linking lay people in the regulatory system into the national organisation for patient and public involvement which the Government is contemplating. We see important roles for patients and carers which are distinct from the roles ascribed to lay people in general, and these could be developed in any local decision making.
18. We do not want to see the concept of professionalism and the associated costs of regulation extended too far. Professional regulation is necessary to deal with the imbalance of power and expertise between patients and those who to whom they submit themselves for treatment because they hold themselves out as having special expertise. The work of care assistants, cooks, porter, cleaners and other unqualified staff is equally important, but we do not need protection against their possible incompetence or inadequacy in the same way because lay people can understand what they are doing and if necessary question it in a way which most of us cannot do with professional staff. The problem here is that patients are generally vulnerable, and often alone and powerless. It is not clear to us how regulation of these staff would help. It will certainly not be possible to protect the title of “healthcare assistant” by ensuring that only registered staff can use it. If regulation is extended to health and social care assistants then it may be that very different practices are needed to deal with these very large groups.