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SIX
Regulating the regulators: the rise of the United Kingdom Professional Standards Authority
Judith Allsop and Kathryn Jones
Introduction
For the past two decades, the way in which health professionals are regulated has undergone major evolutionary change. There have been inquiries, reports, new legislation, changes in practice and new institutions. The traditional form of self-regulation has given way to appointed professional councils that regulate professionals across nine professions, which since 2002 have been overseen by a meta-regulator. The Professional Standards Authority for Healthcare and Social Care (PSA), previously named the Council for Health Regulatory Excellence (CHRE), regulates the regulators in the United Kingdom (UK). Since 2012, their remit has extended to social work, as well as the health care professions. The PSA is an 'arm's-length' agency of the Department of Health, England. A recent report from the Law Commission (2014) proposes further change. From the onset of the reforms, the aim has been to protect people who use professional services by ensuring safe practice although regulation also has an impact on the professionals who provide these services.
In this chapter we aim to describe and analyse the reform process. We look at the special case of regulating professional work, the underlying changes that created a case for reform, and the events that led to government action. We then clarify our understanding of 'regulation', and give an account of the reforms beginning in 2002 with the establishment of the meta-regulator. We go on to describe the changes in the structure of the professional councils following from the Health and Social Care Act 2008, which introduced a corporate form of governance, and an expansion of activity. Finally, we assess the outcome of reforms and the case for further change.
In order to assess the outcome of the reforms, we draw on data collected in 2004, when we were commissioned by the CHRE to undertake a scoping study of the nine regulatory councils (Allsop et al, 2004). Data were collected using a template pro-forma, which was completed by council officers. This covered their founding legislation, the structure of governance and selected indicators on resources and activity. In addition, we documented their role in:
ā¢keeping a register of professionals;
ā¢setting standards for education and practice;
ā¢responding to complaints from the public through investigation to establish whether a professional's practice was impaired;
ā¢adjudication by a panel to determine what action to take.
The process is referred to as fitness to practise (FtP). For this chapter, we collected comparative data for 2014/15 on the meta-regulator and the councils, from websites, reports and other documentary sources, to show the changes in activity and costs as well as developments in regulatory practice. This allows us to assess outcomes.
Why regulatory reform?
In most countries, the practice of health professionals is regulated. Their expertise is highly valued and sought after by the public and patients who want good-quality care. The model for professional regulation, in English-speaking countries in particular, has been state-licenced, self-regulation. With the Medical Act 1858, a regulatory bargain was struck between the state and the medical profession. Medical practitioners were registered as qualified by the General Medical Council (GMC). When the GMC was established, it was an organisation of its time. It was composed of elected members and allowed medical men to draw a boundary around their practice and exclude the unqualified. Doctors could display their registration status by title, and the public could identify them by this means. The GMC had disciplinary powers to exclude those 'who brought the profession into disrepute' and the state could keep a distance. This model was later extended to other health professions.
Although the language has changed, and the scope of functions expanded, professional councils now carry out similar core functions:
ā¢they set standards for competence, behaviour and education;
ā¢they maintain a register of those deemed fit to practise;
ā¢they deal with the concerns raised by patients, the public and others where there is a fear that standards have not been met due ill-health, misconduct or poor performance ā the FtP process.
What have been reformed are the role of state institutions and the governance structure of the professions.
Pressures for change have been due to multiple factors. Rapid advances in expert knowledge and techniques now require that professionals keep up to date with periodic reassessment. It is known that health care interventions carry a risk of avoidable adverse events and there are unacceptable variations in quality (Donaldson, 2000), as a senior doctor commented: 'Medicine used to be simple, ineffective and relatively safe. Now it is complex, effective and potentially dangerous' (GMC, 2000: 8). Patient safety and the prevention of harm have become a priority in many areas of public policy, especially in the health and social care sector. At the same time, demands on health care have increased and so has the propensity of the public to 'name' and 'claim' through making a complaint (Felstiner et al, 1981). The rise can be attributed to various interrelated factors such as:
ā¢higher public expectations;
ā¢better-educated consumers;
ā¢consumer group activity;
ā¢media coverage;
ā¢an ageing population with complex needs
(de Bere et al, 2014; GDC, 2014).
Over the past 20 years, well-publicised cases of serial poor performance, and inappropriate and sometimes criminal behaviour by health professionals, led to a number of inquiries. Extensive media coverage fuelled criticisms that were longstanding. Professional regulation was portrayed as self-serving and as failing to protect the public from harm. Inquiries opened up the opaque internal processes of professional councils to public scrutiny (for a forensic analysis, see Smith, 2004). They revealed a lack of due process for handling complaints and a lack of coordination between regulatory agencies to deal with poor practice. The details of these inquiries and the case for regulatory change are summarised in a report by the Department of Health (DH, 2007a). Within the medical profession, internal reforms were attempted but failed. This was initially due to disunity within the profession on the need for reform (Irvine, 2003) and, later, to a lack of consensus on proposals for the periodic revalidation of doctors' competence (Salter, 2007; Fenton and Salter, 2009).
The most compelling factor in triggering regulatory reform was that the existing system was seen as not fit for purpose by government and a number of other influential constituencies. Pressure for reform had come from patients and consumer bodies, from academia, from the elite lawyers who led the public inquiries, as well as from within the medical profession. While the underlying causes were social and technological, the final factor that enabled reform was a shift in the politics of professional regulation. Concerns about poor practice in nursing and midwifery that were later to conclude with the reports by Francis (2013) and Kirkup (2015) were beginning to surface and underlined the necessity for change.
It was also becoming apparent to the Department of Health that a number of occupational groups in health care were emerging who provided treatment, care and support in public and domestic settings. Some groups sought the status and identity afforded by statutory regulation; for others there was a concern about the lack of oversight (Saks and Allsop, 2007). The process of the professionalisation of occupational groups within the health and social care sector had expanded the workforce. By 2016, there were 1.44 million health and social care professionals regulated by one of the nine professional councils (PSA, 2016a).
What is regulation and how has it changed?
Drawing on Black (2002), we define regulation as a set of rules made by a superior authority to oversee another agency. The rules made are a focused and sustained attempt to alter the behaviour of others according to defined standards or purposes. Regulation is not an end in itself but aims to ensure that the agencies act in the public interest for the good of the community in a cost-effective way. Setting standards and ensuring compliance are part of the task.
Regulations are initiated by the government and neoliberal ideas about New Public Management (NPM) have led to the devolution of regulatory tasks to arm's-length agencies or external regulators (Flynn, 2012). Central governments 'steer' rather than 'row' (Day and Klein, 1997). In UK health care there are multiple agencies that have a role in setting the professional standards to determine and support good practice. The regulatory environment is complex, with separate and sometimes overlapping responsibilities between agencies. Professional councils only set the framework for practice and, in the case of the larger councils, have oversight over many thousands of registrants. The task becomes possible only if regulation is seen as a matrix of formal and informal controls. These range from the professional regulatory body to other regulators, professional associations, employers, specialist support bodies (such as the National Clinical Assessment Service) and quality and standards agencies (such as the Care Quality Commission). Professional regulation is about overseeing the relationship between the professional and the patient to ensure that professional norms and values continue to be internalised and are reinforced through colleague networks. The guidelines for practice issued by the professional body help professionals to negotiate difficult ethical and legal problems.
These developments have led Black (2002) to suggest that regulation has become 'decentred' from the state. Lower-level bodies are expected to identify problems and seek solutions. Effective regulation is a product of their interaction. Yet agencies are likely to have different powers, priorities and sources of information. Information sharing has proved to be difficult to achieve. For example, the report by Francis (2013) on the Inquiry into the longstanding abuse of patients at Mid Staffordshire NHS Foundation Trust noted that even within the same organisation, information that could have prevented the abuse was not shared.
Government committees have advised on the principles of regulation. For instance, the Better Regulation Task Force (2003) recommended transparency, accountability, consistency, proportionality and targeting. Identifying and targeting risks in order to increase safety has become popular, with comparisons made between health care and the aircraft industry. Although this appears a rational approach, some are sceptical. Hutter (2005) points out that there is no consistent definition of techniques for managing risk. Hood and colleagues (2001) have argued that there are difficulties in identifying risk in a situation where qualitative judgements are made, such as in the context of a professionalāclient relationship. These reservations are borne out by the analysis by Lloyd-Bostock and Hutter (2008) of the GMC's database on complaints and whether it could be used to assess risk factors. They concluded that it was inadequate for anticipating and prioritising risk factors. The data had been collected for a different purpose, associations between variables did not establish causality, and if used to take action could undermine relations between doctors and patients.
Reforming professional regulation: an evolutionary process
In the event, the reform of professional regulation has proceeded in a piecemeal fashion. For clarity, we divide it chronologically into three phases using particular Acts of Parliament as markers. The first phase can be taken from the NHS Reform and Health Professions Act 2002; the second from the Health and Social Care Act 2008; and the third from the Health and Social Care Act 2012. The Law Commission (2014) has proposed further changes to be incorporated in the Regulation of Health and Social Care Professions Etc. Bill (House of Lords, 2016). This heavy reliance on legislation to achieve reform illustrates the barriers to realising a shift in organisational cultures that are deeply embedded.
The introduction of a meta-regulator
The NHS Reform and Health Professions Act 2002 set up the CHRE and announced the intention to reform regulation for all the health professions. The CHRE was an arm's-length agency of the Department of Health, with a remit to work in the public interest and promote best practice. It was to act as a meta-regulator of the nine separate statutory health professional councils:
ā¢General Chiropractic Council (GCC);
ā¢General Dental Council (GDC);
ā¢General Medical Council (GMC);
ā¢General Optical Council (GOC);
ā¢General Osteopathic Council (GOsC);
ā¢Health Professions Council (HPC; after 2012 the Health and Care Professions Council [HCPC]);
ā¢Nursing and Midwifery Council (NMC);
ā¢Pharmaceutical Society of Northern Ireland (PSNI);
ā¢Royal Pharmaceutical Society of Great Britain (RPS; after 2010 the General Pharmaceutical Council [GPhC]).
It also aimed to promote public understanding of re...
