GCC publishes response to DHSC consultation: Healthcare Regulation - Deciding when statutory regulation is appropriate

The General Chiropractic Council is pleased to respond to the Department of Health and Social Care's latest consultation on regulatory reform.  The full GCC submission can be found here.

Consultation Question One: 

Do you agree or disagree that a qualitative and quantitative analysis of the risk of harm to patients is the most important factor to consider when deciding whether to regulate a health or care profession?

GCC Response: AGREE

As stated in our responses to consultations on regulatory reform, particularly the in-depth survey completed as part of the independent review of regulators, a regulator’s primary concern is the protection of patients and the public. The consequences of failing to uphold this primary objective could be profound.

Having been tasked by Parliament to regulate a profession, and where regulation demonstrably reduces the risks of harm to patients, any decision to reclassify a regulated profession must be made transparently and carefully with a heavy burden of proof necessary.

A qualitative or quantitative risk analysis model can never be wholly objective or perfect. We agree that the Professional Standards Authority ‘Right Touch Regulation’ guidance is a good model as it involves both a quantitative element (the likelihood and harm level) and a qualitative element (the nature of the harm with how and why it occurs). But any assessment must be sensitive to the context and take account of the presence or absence of the overall ‘continuum of assurance’ that the consultation paper rightly identifies.

To elaborate, the role and functions of all nine health and social care regulators contribute to the safety of patients. However, as an example, chiropractic is a small yet steadily growing profession with care often provided in settings where the patient relates to a sole practitioner, and where there are limits to the extent to which clinical governance arrangements are embedded in such interactions.

We would contend that the General Chiropractic Council plays an essential developmental role. It does so through its rigorous graduate entry and education requirements, standards of continuing professional development, establishing guidance alongside a statutory Code of Practice, fostering professionalism, and incentivising integration towards modern health and care expectations. In essence, we are contributing to the development of a less mature yet growing profession to meet the highest standards of healthcare in the UK.

The GCC does this by operating a balanced approach to regulation, encouraging and enforcing standards at all stages of the profession, from stringent Education Standards for students to ever-enhancing CPD requirements for registrants.

As such, the assessment of whether a profession enters or departs from regulation should consider its maturity; the assurance mechanisms in place, and the infrastructure around it (for example, membership bodies and leaders) to enable it to make necessary changes in pursuit of the protection of the public.

Consultation Question Two: 

Do you agree or disagree that proportionality, targeted regulation and consistency should also be considered in deciding whether to regulate a health or care profession?

GCC Response: AGREE

As stated in our response to Question One, a more nuanced approach is preferred when deciding whether or not to regulate a profession. Creating a ‘one-size-fits-all’ approach in determining whether to regulate a profession is challenging.

The risk of harm to patients and the public must always remain the primary driver. The conclusions from any modelling must be treated with caution as variables; the state, maturity and size of a profession, and the range of potential risks of harm to patients, are complicating factors.

We accept that statutory regulation is not the only way to protect the public. However, statutory regulation likely assures the public of a professional’s skills and knowledge along with their duty of care. Equally, and by definition, we can see that an often-unaware public is less protected by activities undertaken outside of regulatory control.

A profession must be definable and differentiated from other professions, with an agreed body of knowledge and standards. Furthermore, there needs to be a measure of risk associated with their activities and accountability where harm arises.

The GCC sees problems arising from the proliferation of new and spurious professional titles, ie. where practitioners undertake similar activities to a regulated profession but are outside the misuse of title regulations. Understandably, patients are likely to be confused, misled and at risk of treatment in an unregulated and uninsured setting.

There is an inconsistent framework of regulation as far as the public is concerned, ie. why is a chiropractor regulated but someone describing themselves as a spinal therapist is not? The overall reform of the regulation programme aims, among other things, to provide regulators with more flexible and responsive powers to address risks that become apparent, thereby better protecting the public. In other words, our approach can be more proportional and targeted and contribute to a more easily understood and consistent framework if given a greater ability to flex our approach.

Consultation Question Three:

Do you agree or disagree that the currently regulated professions continue to satisfy the criteria for regulation and should remain subject to statutory regulation?

GCC Response: AGREE

Fundamentally, this is a question for Government to answer; however, we assess that those professions currently regulated meet the tests applied.

The chiropractic profession strongly believes that it should be subject to regulation. The regulatory activities we undertake contribute positively to the safety of the public. Regrettably, we see evidence of the serious effects of poor care and conduct in very small numbers, albeit this is significant for those patients affected.

The public will be keen to see evidence of why a regulated profession has been removed from statutory regulation. We have yet to see any such evidence concerning the profession that Parliament has tasked us to regulate.

All 34 professions under regulation from the current nine regulators have clear and definable roles within the healthcare sector. In addition, regulation provides the public with assurance about the quality and reliability that they expect to see.

Consultation Question Four:

Do you agree or disagree that currently unregulated professions should remain unregulated and not subject to statutory regulation?

GCC Response: DISAGREE

While the GCC is not advocating the addition of any specific new professions to the current list of regulated professions, we should remain vigilant to any health and social care development that may cause a potential risk of harm to the public and patients.

The Professional Standards Authority should routinely review its accredited professions to determine if any need to move to regulated status, again dependent on their right touch approach. Further, through its performance review process, the PSA should discuss the adequacy of extant protection of title rules alongside applying them.

As stated in Question Two, we are concerned that some practitioners may take advantage of the somewhat rigid system relating to the protection of title to bypass regulation, potentially increasing the risk of harm to the public and patients.

The creation of more flexible rules will allow regulators to assess if ‘alternative’ titles need to be covered by pre-existing legislation and rules to ensure the public has greater confidence in practitioners.

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