A better form of regulation?
Has this week seen the end of professional self-regulation as we know it? The provisional answer is “yes”. For the first time — under section 29 of the National Health Service Reform and Health Care Professions Act 2002 — the decision of a health regulator to exonerate a member has led to the regulator being taken to the High Court by the Council for the Regulation of Healthcare Professionals (CRHP) on the grounds that the decision was too lenient.
The regulator in this instance was the General Medical Council and the
details of the case can be read on p403.
Some pharmacists will be scratching their heads and wondering about the
relevance for them of these legal to-ings and fro-ings. They are highly
relevant because the CRHP is the statutory body that oversees the decisions
of the regulators of all the health care professions, including the Royal
Pharmaceutical Society. (To date, it has scrutinised 27 decisions of
the Society’s Statutory Committee and has taken no further action.)
Under section 29, if the CRHP believes that the regulator has made a
decision that is not in the public’s interest, and that patient
safety may still be at risk, it has the right to take the regulator to
the High Court for that decision to be re-examined and, if appropriate,
overturned. This ruling and the result of another test case — also
reported on p403 — help define the limit and extent of the powers
of the CRHP under section 29, which will effectively keep regulators
up to the mark and ensure that public safety is always their prime consideration.
There are two schools of thought on the implications of this for self-regulation.
One is that, as the CRHP takes more cases to the High Court, the regulators,
in their eagerness to avoid the extra hassle and expense that this will
inevitably involve, may become more draconian in making their disciplinary
decisions. Self-regulation will, in future, be conducted with one eye
on the High Court.
The other school — which is supported by the second ruling this
week — is that if a health profession’s regulatory process
is in order, it has nothing to fear.
As time goes on, and more cases are taken to the High Court, or the Court
of Session in Scotland, it will be revealed to both the CRHP and the
regulators what sorts of decisions are likely to be challenged.
Perhaps all this signals an end to professional self-regulation as it
has been known. But if it offers greater protection to patients, ensures
that regulators treat their registrants in roughly the same way, and
guarantees that the processes are transparent and fair, it could be argued
that it will create a better form of self-regulation.
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