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GPhC to win new powers in revamp of the laws governing healthcare professionals

The General Pharmaceutical Council would gain new powers on how it regulates pharmacists as part of wide-reaching proposals — published today (2 April 2014) by the UK’s law commissions — to reform the law on how healthcare professionals are governed to protect the public’s safety.

Nicholas Paines

The recommendations will empower regulators to respond more quickly to emerging public health concerns, says Nicholas Paines QC, the law commissioner leading the project for England and Wales

The commissions are proposing to bring in a single statute to cover the regulation of health and social care professionals instead of what they perceive to be an inconsistent, fragmented and a complex system at the moment. The proposals come from the three law commissions in the UK: for England and Wales, Scotland and Northern Ireland.

The proposed framework and draft Bill will implement the recommendations of the Francis report, which investigated the poor treatment of patients at Mid-Staffordshire NHS Foundation Trust, so that regulators have wider powers to investigate poor professional practice and to reconsider cases that have been closed following a mistake or error (see legal analysis in the Panel below).

The proposals will also give regulators the power to make their own rules, as opposed to the current system, where they must apply to the Government, which can take up to two years. Any new rules would be subject to public consultation.

Under the plans, regulators would have the power to investigate “proactively instances of suspected poor conduct and practice whenever such concerns come to their attention”. At the moment, some regulators can investigate only when they receive a formal complaint, the Law Commission for England and Wales says.

For the first time, the regulators would be empowered to discipline or strike off professionals who are not able to communicate clearly in English. The reforms would bring consistency to, and extend, the range of sanctions that can be imposed by regulators’ fitness-to-practise panels, says the Law Commission for England and Wales. 

Systems over individuals need to be considered, stresses RPS

Martin Astbury, the President of the Royal Pharmaceutical Society, told PJ Online: “Many of the commissions’ recommended reforms seem appropriate. Whatever the changes that take place, we need a regulator that is accountable to the profession and the public that we serve — and the GPhC needs to demonstrate with actions that it will take system regulation seriously: having the default of investigating the system first before looking at individuals.”

He explained that if a problem occurs at a pharmacy and a GPhC inspector is called to investigate, then the inspector should start from the assumption that there had been a system failure (which is the responsibility of the superintendent and owners), rather than blaming an individual pharmacist and inspecting the individual’s fitness to practise.

“Even though the error is made by an individual pharmacist, the error can still be labelled as a system error. For example, the error was a general slip (wrong medicine selected and labelled) but a contribution was a lack of other trained staff to second check or pressure of head-office paperwork distracting the pharmacist,” said Mr Astbury.   

Revalidation too

The reforms would also ensure revalidation, defined as an “ongoing assessment of a professional’s fitness to practise”, is brought in for all health and social care professionals. Currently, only doctors need to show ongoing fitness to practise. The GPhC has already begun work on revalidation for pharmacists, with an estimated start date of 2018.

The proposals would also allow for the introduction of barring schemes to prevent unregulated workers from providing health or social care services, and place an obligation on regulators to seek opportunities to work together.

Fitness-to-practise decisions could be over-ruled by oversight body

The oversight body, the Professional Standards Authority, will retain its power to appeal to the higher courts on certain fitness-to-practise decisions. But the emphasis will change from whether the FTP decision “should not have been made” or amounted to “undue leniency” to allowing PSA appeals to be taken where the outcome is insufficient in terms of public protection. The PSA would also be required to review the economic efficiency of the regulators to ensure that they are providing value for money.

Nicholas Paines QC, the Law Commissioner leading the project for England and Wales, said the reforms placed patient protection at the heart of a new framework. “If implemented, [the recommendations] will enhance the autonomy of the regulators, empower them to respond more quickly and effectively to emerging public health concerns and enable them to meet the demands of a modern, devolved health and social care sector.”

Currently, there are nine separate regulatory bodies responsible for around 1.4 million professionals working in 32 different health and social care roles in the UK. The proposals make recommendations for eight of these bodies, including the GPhC, the General Medical Council, the General Dental Council and the Nursing and Midwifery Council.

Seven regulators, including the GPhC through its chairman Nigel Clarke, have already expressed support for the reforms, and have called on the Government and all political parties to support the publication and “urgent” parliamentary consideration of the Bill proposed by the Law Commission.

Writing in the Sunday Times (30 March 2014), the regulators say: “Ministers recognised that we were hamstrung by laws which were outdated, complex, highly prescriptive and difficult to change. Too often we knew what was wrong, but legal structures designed for a different era made it impossible for us to put things right quickly and efficiently.”

They add: “The recommendations of Robert Francis QC following events in Mid-Staffordshire highlighted the vital importance of effective regulation focused on promoting safe, compassionate patient care rather than, as too often in the past, intervening only after patients have suffered harm… . This will be a once-in-a-generation opportunity to bring long-awaited reform to ensure that the health professionals who treat us are properly trained, competent and up to date.”

However, the PSA, which oversees the GPhC, has described the proposals as a “backwards step for public protection”.

It argues that some of the changes the Law Commission proposes will make it harder to protect patients from misconduct, will allow the regulators to settle some cases in secret, reduce public involvement in decisions and limit the PSA’s powers of appeal.

The regulation of all healthcare professionals was overhauled in the light of the Shipman reports, but it was done in a piecemeal fashion and there are many regulators, said David Reissner, partner and head of healthcare at the law firm Charles Russell.

He explained that, at one time, the Government was about to introduce a single fitness-to-practise tribunal, but the plan was scrapped in what became known as the “bonfire of the quangos”.  He said that was a pity, because it would have helped achieve the consistency the Law Commission is now aiming for.

The Law Commission has a strong track record of having its proposals implemented. It is arguing that a single legal framework is needed for all healthcare and social care professionals because, at the moment, some regulators can investigate only when they receive a formal complaint. The proposed reforms would bring consistency to, and extend, the range of sanctions that can be imposed by regulators’ fitness-to-practise panels, Mr Reissner added.

“The General Pharmaceutical Council is already one of the newest healthcare regulators, so its powers are among the most modern. I do not anticipate major change for pharmacists. Giving regulators more powers will not necessarily make them more proactive, and giving regulators the power to make their own rules will not achieve consistency.

“However, the GPhC has said it cannot enforce premises standards until it receives new powers from Government, and it wants the power to conduct intrusive surveillance. Implementation of the law commissions’ proposals may allow them to give themselves such powers without waiting for Government action.”

Sadly, he added, it always seems to take a scandal to get governments to focus on healthcare legislation. The Francis report into Mid-Staffordshire hospitals is the driver for reform but only a single fitness-to-practise tribunal will achieve real consistency in decision-making: “In my view, the opportunity to create this is being missed again.”

 

 

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2014.11136856

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