Tom Smith, policy analyst at the BMA, highlights today's reports on the regulation of health professionals
February 2007
What follows is a synopsis, by the BMA’s Health Policy, Economics and Research Unit, and initial analysis of the contents of today's (21 February 2007) White Paper on professional regulation.
Although posited as a White Paper for all healthcare professionals, it is largely about doctors. Most of the detail relates to medicine. Where there is no direct translation to the other professions, arrangements are to be scoped or reviewed or further developed by their regulator.
There is a welcome sensitivity to devolution that was absent in the CMOs report and also a better appreciation of the different ways in which doctors are working, though this is still inadequate, not fully appreciating the direction of travel within policy towards specialist care being increasingly provided outside hospitals, for example. A lot of the proposals are still to be worked through and at its end the White Paper announces that a consultation on the details of implementation will follow.
A consultation will follow on a detailed implementation plan
'The Government will consult with Devolved Administrations, the regulators, the professions, employers and other key stakeholders on the development of a detailed implementation programme'.
In her foreword, the Secretary of State promises that 'all important changes on issues as vital as this will be tested carefully and vigorously by everyone with an interest'.
There will be an opportunity for doctors to put forward their thoughts on the detail of the proposals and influence how new initiatives are shaped. There are many details that need to be explored as the White Paper fails to clear up many of the ambiguities raised in the CMO report about how various mechanisms will work.
Three areas where the BMA's comments on the CMO's recommendations have been adopted
There are three areas where the BMA's comments on the CMO's consultation have been taken on board:
(1) Medical students will not become regulated unless the regulator decides the risk they present warrants it.
(2) Medical education will remain with the GMC, so the profession will set professional competencies, an important principle of self-regulation.
(3) The most welcome change, however, is the rejection of the idea of 'the' affiliate (a single individual representing the regulator within organisations) with the concept of a regional network of affiliates that are not placed within institutions.
This is precisely what the BMA proposed in its response to the CMO's ideas on the future of medical regulation. It is an extremely important move as it is a step back from the tendency within the CMO report to conflate regulation and management, with the former becoming an agency of the latter.
However, while our proposals were designed to strengthen peer review within a clear national framework, the membership that is proposed in the White Paper is a little different and there are details to be talked through, such as the relationship between the affiliates network and a 'regional medical regulation support team'. This is a new idea that was not in the CMO report. Affiliates will lead these teams, according to the White Paper, which should also include the SHA director of public health, the clinical governance lead, NCAS, the Healthcare Commission, postgraduate dean and 4 lay affiliates.
A civil standard for the burden of proof will be adopted, but applied according to a 'sliding scale'
The White Paper endorses the CMO's recommendation that a civil standard of proof be adopted to replace the criminal one. However, whereas the CMO ruled out the use of a sliding scale, the White Paper proposes the civil standard is applied in this way. With the GMC supportive of this move there will be key discussions in coming months about what the application of 'a sliding scale' will mean in practice. It ought to mean that a criminal burden of proof is required where a doctor's career is under threat.
GMC members to be appointed to a council with a parity of medical and lay members
Specifically on the GMC, the White Paper proposes that all regulatory bodies should 'have, as a minimum, parity of membership between lay and professional members'. The GMC itself supports this idea, but the BMA has argued for a medical majority as indicative of a concept we are keen to retain, professionally-led regulation.
Details on this idea will follow from the GMC and there will be an opportunity to comment on them.
The White Paper states that 'council members will be independently appointed' to 'dispel the perception that councils are overly sympathetic to the professionals they regulate'. There will be discussion on who appoints and how as well as the eligibility criteria that will be introduced. The BMA's suggestion is that the list of candidates that are appointed from is one that maintains the confidence of their peers.
The 'Government will seek legislative agreement to establish an independent body to adjudicate on fitness to practice cases'
This endorses one of the CMO's key recommendations, but does not widely expand upon it. The BMA's consultation response argued that this is an expensive idea without much to support it. There was a view from some doctors that such a body might provide greater fairness, as doctors would have full recourse to the law. The White Papers does say that doctors will have a right of appeal against decisions, to the High Court of Court of Session.
This is an area where there will be a lot of discussion about how the idea is shaped. There is some hint in the document that the body might eventually be applied to adjudicate for all professionals. The government will charge the new body with establishing a central list of people, chosen by the Appointments Commission and specifically trained. Other regulatory bodies 'will be able to draw on this list in order to conduct independent adjudication panels within their own organisations'.
This is one area, amongst several, where doctors are being singled-out. None of the other professional regulators will work with this new body in the same way as the GMC.
Revalidation to have two core components: relicensure and specialist recertification
The White Paper 'endorses the revalidation proposals set out by the CMO that revalidation will have two core components: relicensure and specialist recertification'. Standards in relation to the latter 'will be set and assessed' by the Royal Colleges. While the BMA believes that plans for relicensure have been needlessly delayed, more thought is needed on how specialist recertification will work. We have raised the issue of specialists working in a different area than they are registered in.
Appraisal will be developed and have both formative and summative elements.
Arrangements for revalidation of doctors will vary according to their working relationships
One of the criticisms of the CMO's report on regulation was its failure to appreciate the range of working relationships some doctors enter into, working in portfolio fashion, for example, or across different organisations. The White Paper proposes three categories:
- Employees of an approved body (NHS trust or licensed independent provider) will gather evidence to support revalidation as part of normal staff management and clinical governance systems. Employers will provide recommendations to the professional regulators.
- For those, 'including self-employed contractors', providing services commissioning by NHS primary care organisations, the revalidation processes will be carried out under the supervision of the NHS commissioning organisation OR where it is necessary to take an overview of NHS and private work, by the regulator
- 'For all others, for example osteopaths, the relevant regulatory bodies will develop arrangements'
The White Paper says that it will review the current Performers List arrangements to consider whether they are being set effectively. The following suggests a central view that they are not: '...the Government will consider the regulatory burden of separate lists being held by each PCT'.
The need for clarity in the relationship between management and regulatory functions
The White Paper raises a number of ideas which will precede debate about their implementation. Discussion over the details may seem technical, but it is these that will determine the reconstruction of regulation.
The proposals raise important questions about the extent to which regulation will become shaped by employers/commissioners rather than being directly related to professional standards. They suggest that GPs revalidation will be supervised by the commissioning body, the PCT, but how this responsibility is discharged will be crucial in determining whether the new system is essentially supportive or punitive.
As noted earlier, there will be a network of affiliates and the organisational role that the CMO envisaged for them will be taken on by the medical director. This is appropriate given a need to clearly distinguish between 'management' of poor performance and 'regulation' of professional practice. There is a broader need to refashion the relationship between these concepts. The danger in some of the proposals is that it leads to a merger of the two, which is a threat to professionalism.
One of the most disputed ideas in the CMO's report was the idea a "recorded concern" (without official status but remaining on the record of a doctor). This appears to have been placed in the 'too hard' box. It will be further explored with key stakeholders across the UK. While the idea may be on hold for now, it may reappear or simply develop more slowly than the others aspects of the White Paper. It is a move that should be fiercely resisted as, in any suggested form, it is a punitive measure with no appeal or clarity about its issue. Furthermore, it would be part of what many fear to be an abdication of the management function, which is to deal with organisational problems.
As the BMA's response to the CMO consultation made clear, proposals to develop regulation must go hand in hand with a concerted effort to strengthen clinical governance within organisations, demonstrating an onus on quality and information that is conducive to the maintenance of high professional standards.