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September 4th 2005

BACP Press release

16 August 2005

Andrew Foster
Director of Workforce
Department of Health
Richmond House
79 Whitehall
London SW1A 2NS

Dear Andrew Foster
        Re: Review of non-medical professional regulation: Call for ideas

Further to our letter dated 8 August from BACP Chief Executive Laurie Clarke seeking membership of the Advisory Group, we now have pleasure in submitting our response to the 'call for ideas'.

We consider that a starting point for this review would be a return to some basic questions on the subject of regulation. What is the purpose of regulation? What does it set out to achieve? Who gains from regulation and what do they gain?

1. The Professions

Regulation has served a number of purposes for the professions in the past. It represented recognition that a particular occupational group had gained jurisdiction over an activity to the exclusion of other groups. It gave legitimacy, status, respectability and greater bargaining power in the workplace and with user groups. It was the mark that showed that an occupation had become a profession.

Today, so many diverse occupations are regulated (from physiotherapists to radiographers to night club bouncers), that regulation no longer confers the kind of status it once did. However, through the protection of title, regulation does close an occupation to the unqualified and thus provides some advantage to registrants, along with some public protection.

Further, statutory regulation results in a profession yielding significant control over its educational and continuing professional development (CPD) standards, and therefore, over its future development.

Bearing all this in mind, it is difficult to see why any currently unregulated profession would seek statutory regulation under the existing models with their tendency to stifle innovation.

2. The State or Government
By regulation, the Government demonstrates its commitment to public safety by protecting the public.
Regulation also reduces the power of autonomous professions. Statutory regulation confers a degree of state control over professions through the regulatory councils, whose lay members are appointed by the Privy Council. It makes professionals accountable for their activities. It grants a level of control over the future development of the professions. It improves cost effectiveness as it enables government funded commissioners of services to know what they are buying ie. registered professionals who have met standards of education and proficiency.

3. The Public
The public have a measure of security, in that they can check the registration of an individual and have a process for redress in case of complaint.

Traditionally there has been an implicit fiduciary relationship between the professional, the public user and the state. Whereas the fiduciary relationship was values based, the regulatory one is rules based. Recent Inquiries such as Shipman and Kerr-Haslam, have demonstrated the consequences of disregarding the fiduciary relationship by some members of the medical profession. With this in mind, the development of statutory regulatory councils could be seen as a governmental response to accusations that professional bodies – who largely operate voluntary self-regulatory systems – are biased in favour of their own members and that the establishment of statutory councils prevents this. However, the balance to be sought is one between public protection and professional accountability.

There remains the question: is it necessary to regulate every profession and occupation? The five principles of good regulation set out by the Better Regulation Task Force (BRTF) are that regulation should be proportionate, accountable, consistent, transparent and targeted. (Principles of Good Regulation, BRTF revised 1998, 2005). This suggests that regulation should be targeted to activities that represent serious risk eg. hypnotherapy (Kerr-Haslam Report 2005) rather than a blanket approach. The BRTF publication 'Imaginative Thinking for Better Regulation' (2003) makes the point that self-regulation may be better value for money than classic regulation. It seems then that if the purpose of regulation is to better protect the public, statutory regulation of all non-medical professions and support workers may not be the most cost effective or efficient way to achieve this.

We would be interested to learn whether or not there is an underlying assumption in this Review that statutory regulation ensures public protection. Given that there appears to be little evidence to support such an assumption, we would be interested to explore that premise further, adding that the protection of a title, which is the main means by which statutory regulation operates, is proven to be ineffective; practitioners are able to re-title and re-brand themselves and continue working.

Although BACP supports the concept of statutory regulation, we remain concerned that without a strong link to specialist professional bodies, the process will not offer the public protection the government wishes to ensure. A possible alternative strategy to statutory regulation would be to educate the public to use only professionals who have a quality kite mark.

Specific comments on the six identified themes:

A.  What measures are needed to demonstrate practitioners' initial and continuing fitness to practise?

·  Initial fitness to practise and entry to the register

In the first instance, we strongly recommend that full character and job references be taken on all individuals, along with the usual medical, CRB (Criminal Records Bureau) and police checks.

Secondly, training and experience must be considered. The achievement of an approved qualification is used as the standard for entry to a professional register in some professions, but not all. Many also have a probationary period or conditional registration that covers the first year of professional practice, eg. social work, teaching, etc. It is our view that a probationary system is a much better indicator than entry at graduation, at which point the 'potential' registrant has no experience of autonomous practice. Insistence on, for example, a university qualification for entry to the register (as with the HPC) does not itself improve public safety; an academic Degree is no indicator of professional competence, but rather the capacity, to achieve such competence. In some cases, a Diploma will require the successful completion of a practicum period as part of the course and hence offer better public protection. We would advocate that a probationary period be a requirement in all non-medical professional regulation.

An approved qualification route would require each profession to have a Standardised National Training Course, preferably accredited by the relevant Professional Body to ensure standards are developed as necessary and delivered by appropriate educational establishments. In the short-term, there would also need to be a qualifying period for professionals who are already in practice, to acquire the appropriate qualifications for registration. These individuals should also be subject to the same stringent checks and scrutiny as new entrants.

·  Continuing on the register

A recent investigation by PARN (Professional Associations Research Network) into the prevalence and effectiveness of CPD, found that CPD was only really of benefit in reflective professions (Andy Friedman, 2005: Critical Issues in CPD PARN). Evidencing CPD is, in itself, unsatisfactory as the aim is to enhance professional development, and this is essentially a subjective matter. Certificates of attendance, accrual of CPD points etc, do not provide true evidence of CPD. This whole issue will of course need to be viewed alongside the KSF (Knowledge Skills Framework) of Agenda for Change.

Re-registration however, should not rely solely on CPD evidence. We would suggest a routine CRB check, a demonstration that a registrant has been in continuous practice with no significant breaks which may affect performance, and an audit of any complaint and/or disciplinary action that may have been taken against them.

B. What changes are needed to the process of carrying out fitness to practise investigations in order to maximise public safety, the quality of health care, fairness to registrants and satisfaction of complainants?

Fitness to practise procedures need to be dealt with speedily to maximise public safety and ensure the quality of healthcare. The public needs to be informed of how to complain and the system needs to be accessible and user friendly. All hearings should be held in public with the provision for private evidence being given only in particular and exceptional circumstances.

C. How can we best ensure that support workers provide safe and reliable services to patients? Should they be subject to a formal and fully developed system of regulation?

A national database accessible by all employers in which disciplinary matters could be recorded has potential, as long as it complies with the Data Protection Act. Alternatively, references could be obtained from previous employers and a national requirement should be placed on employers to carry out CRB checks on all staff.

Key points would be:
General appraisal
Regular observation
Skills testing
Checking adherence to policies and procedures
Ensuring regular mandatory continuing professional development (CPD)

We would add, at this point, that the NHS Agenda for Change in its current format is almost a regulatory system. It has the KSF and a structure for CPD, and could, with minimum development, serve this staff cohort well.

Our direct reply to question two is yes, support workers should be subject to a formal system of regulation.

D. How should new and extended professional roles be regulated?

·  Professions not currently covered by statutory regulation

Taking the HPC as an example, it seems to us, that the developmental functions relating to the professions it regulates, ie. review of curricula, approval of placement agencies and definitions of CPD, can only have a detrimental effect on the development of best practice and innovation in those professions. Whilst the purpose may have been to address professional self interest, we believe the resulting exclusion of professional expertise can only result in stagnation in the longer term.

Therefore we think that a strengthened and publicly accountable system of voluntary self-regulation would be more appropriate than a statutory regulated model.

We would argue further for external audit by a body such as Council for Health Regulatory Excellence (CHRE).

·  Extended professional scope of currently regulated staff

It is difficult to see how this could be treated any differently from currently non-regulated professionals as discussed above.

Whilst the HPC may be a suitable regulator for health service occupations when the entry route is clear, ie an undergraduate degree, and when employment of registrants is primarily in the NHS, it is far less suitable for other non-medical professions.

Strengthened voluntary self-regulation, with the support of robust conduct procedures and public education are a better and cheaper way forward. If a regulatory system is developed along similar lines to the HPC model, we can only foresee more responses like that of the British Psychological Society (BPS), and that many other professional groups will not apply for entry. That these groups would benefit from regulation is not in question. The how and by whom, is. A one size fits all approach is unlikely to be the answer. Perhaps the professional bodies could retain their autonomy in return for collaborating in devising National Standards to which their members must adhere. This, in turn, could lead to a National Register of Professional Practitioners.

Agenda for Change encourages innovation, the development of existing roles, and enables employees to enhance their training, whilst allowing for variation within their existing role. However, some of this currently exists and is known to have its drawbacks. An example of this may be a nurse who extends/changes their role to take on a much more defined role as a counsellor. The Royal College of Nursing (RCN) would see this as an expansion of a nurses primary role but in effect it is a role that is very different as it involves moving away from the hands-on physical caring for people (medical model), to a relationship based model of working with people. If the components of both the roles were to be separated out they would fall under the auspices of different professional bodies with differing Ethical Codes and Codes of Conduct.

E. How does regulation fit into the wider context? How does it relate to the new workforce systems (Agenda for Change, the Skills Escalator, etc) and to the wider network of strategic healthcare priorities and modernised systems, including the extension of IT?

The Agenda for Change, with its National Job Profiles (NJPs), effectively regulates entry into employment with the NHS, and the profiles were developed in consultation with Trade Unions and Professional Bodies in many cases. The result is that Professional Body standards are incorporated into job profiles and work to establish standards for progression into higher Pay Bands.

In addition, because of the progression system (and Skills Escalator), and the principle of individuals being paid for the actual work done, it is likely that individuals roles/work within the NHS will evolve beyond their original job profile into other 'hybrid' occupations or more extensive/generic occupations. An example of this may be a 'counsellor', after adding other skills and functions, evolving into a 'psychological therapist'. As such, the impact of regulation may make it imperative to have generic standards and ethical frameworks.

The wider network of strategic health priorities may be affected by the adoption of standards by private healthcare providers who are inevitably going to follow the lead of the NHS, and will also have to adopt their standards and protocols. This is not a negative comment. If registrants or potential registrants work outside the NHS then the regulatory systems also need to extend beyond the NHS.

We would suggest that separate systems of regulation for doctors may not necessarily be helpful in a culture of growing numbers of para-medical professionals and non-medical professionals who have an increasing, and inevitable, overlap with medical professionals.

Dual registration is an issue, as is the idea that a professional could hold registration in one professional field and be regarded as registered in another. The Kerr Haslam Report shows the dangers of such a view. Similarly nurses registered with the National Midwifery Council (NMC) might undertake a short training course in cognitive behaviour therapy (CBT) and then be seen as being equivalent to a registered counselling psychologist, counsellor or psychotherapist.

With regards to the extension of IT, general sharing of information is of continuing concern to all those involved in psychological therapies who deal with especially sensitive personal information.

F. What changes are needed in the structure, functions and number of healthcare regulators?
A way forward would be to combine most of the existing regulatory councils into one council that deals with conduct and fitness to practise for all professionals registered with a relevant professional body that had entry standards and codes of ethics. This would be more cost effective, it would ensure public protection and it would protect the intellectual and professional development of all the professions.

Additional comment
A final suggestion from us would be to raise a question about how our European partners manage such things – can we learn from them without re-inventing the wheel? We are aware of the free movement of labour in the EU and its impact on such systems. Overall, there seems to be little regard for the European and global context, yet we would suggest that there is much to learn from them.

Yours sincerely
        Alan Jamieson
Deputy Chief Executive

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by Nick Totton
as with many other IPN documents, this text is a draft subject to continuing revision.