The Law Commission’s review of Health and Social Care Regulation

F1 Online/Rex Features
By David Allan

I attended an interesting seminar yesterday evening hosted by Blake Lapthorn solicitors. Frances Patterson QC, one of the Law Commissioners, spoke about the LC’s current review of Health and Social Care Regulation.

The consultation stage closes at the end of this month, although interested parties who notify the Commission that their submissions will be late are likely to be shown some latitude. We shouldn’t hold our breath for new legislation though because the LC’s report and the draft Bill intended to accompany it will not be published until 2014. By the time any such Bill receives Parliamentary approval, Royal assent, and is brought into force, I’d suggest health care regulation watchers can probably sketch in 2015 as the earliest time the changes will take effect.

The principal aims of the proposals the LC are consulting on are simplification and with it some cost savings. In a first, the project is a joint review with the Scottish and Northern Irish Law Commissions so we can hope that future legislation will include those jurisdictions.

The principal “top-level” proposals include: (i) replacing the present framework of each profession being governed by its own statute with a single Act; (ii) dispensing with the remaining role of the Privy Council, and therefore granting the various regulators wide powers to set their own rules without PC approval, but; (iii) giving the government overall supervisory responsibility, including the power to merge regulators and step in where a regulator’s performance is deemed to be unsatisfactory.

Also proposed is the introduction of a new statutory “paramount duty” on the regulators. Such a concept appears similar to the “overriding objectives” of the criminal and civil procedure rules and perhaps the statutory objectives of the financial regulator the FSA contained within its governing Act. It is perhaps a necessary aid to the interpretation of the correct exercise of regulators’ powers but the overriding objectives I’ve mentioned from earlier legislation have been, inevitably, drafted so widely and permitting such a variety of interpretation that the difference they make in practice may be limited.

Proposals with perhaps greater potential significance “on the ground” include: simplifying the fitness to practise test, removing the requirement for a separate investigation committee which some regulators currently adopt, allowing regulators to step-in whether or not they have received a formal complaint, and a proposal to introduce a consistent range of sanctions each regulator may impose.

One final proposal which is certain to make a big practical difference if adopted is to introduce the power to make costs awards in all regulatory proceedings covered by the new Act. Personally I’d suggest such a move would be positive because, as one contributor to the seminar noted: why should the majority of responsible practitioners pay for the legal costs incurred in taking disciplinary action against the less responsible minority? On the other hand, such a reform has the danger of encouraging spiralling legal costs and potentially inhibiting those subject to regulatory proceedings from maintaining what may be meritorious defences for fear of large adverse costs orders if they are unsuccessful. One compromise perhaps would be a fixed cost regime similar to that used in some civil cases.

So, overall it seems regulators and those working in this area will have to brace themselves for a period of disruption in the laws that govern them from 2014 but on the basis of the proposals set out at the seminar, the long-term benefits will be well worth it.

The deadline for responses to the consultation is 31 May 2012.

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