DHSC consultation: Regulating anaesthesia associates and physician associates

This is our response to the DHSC consultation on regulating anaesthesia associates and physician associates. The consultation focuses on the draft order that will make physician and anaesthesia associates registrants of the GMC, and forms part of the future work of the DHSC in revising the whole regulatory framework for the GMC.

The AOP welcomes the opportunity to comment on this important consultation given the principles and drafting of new legislation in this area is likely to inform future DHSC approaches to legislative and regulatory reform for other healthcare regulators including the GOC.

Our response has been developed in consultation with AOP colleagues from across policy, legal and regulatory directorates and also with members of our AOP Policy Committee which is made up of board and council members.

Part 1: General

Do you have any comments relating to ‘part 1: general’ of the consultation?

It is our firm view that health should be retained as a separate, third grounds for action. It is not appropriate for concerns relating to a registrant’s health to be framed as a potential impairment of competence. Practitioners facing health problems may feel stigmatised if these are classified alongside competence concerns, especially if there are no other concerns about the practitioner’s competence.

Registrants cannot be erased from the GOC registers solely on health grounds, and this protection would be lost if health is not retained as a separate ground for action. We and many other stakeholders made these points to the DHSC during its 2021 consultation on professional regulation. It is disappointing this has not been reflected in the draft order here, we hope DHSC will review and revise this position.

Keeping a focus on health as a ground for action and support for registrants is the best way to protect the public. Removing the health category will lead to other processes being needed to deal with registrants with health issues. This potential blurring of lines between health and competence related concerns could lead to a more opaque and less targeted fitness to practise system.

Part 2: Standards and approvals

Do you agree or disagree that the powers outlined in ‘part 2: standards and approvals’ are sufficient to enable the GMC to fulfil its role safely and effectively in relation to the education and training of AAs and PAs?

Agree

Do you have any additional comments on ‘part 2: standards and approvals’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

No - the approach here seems fairly logical and is mainly about including associates in the GMC education responsibilities. There doesn’t seem to be a need to respond here (other more significant points relating to education are likely to be in the full GMC legislative revisions).

Part 3: the Register

Do you agree or disagree that the draft order provides the GMC with the necessary powers to determine the standards and procedural requirements for registration?

Neither agree nor disagree - The powers and provisions should be accompanied by appropriate safeguards about data privacy and handling. Regulators need to have appropriate rules to ensure information held and/or published by them in in the interests of public safety, is fair and proportionate to risk. Other principles that regulators should follow are:

• Regulators must hold and publish information only as far as public protection is served
• Regulators should set out and consult on policies related to the use of register annotations, including rules about the proportionate publication of restrictions on practice or fitness to practise decisions (including when they will be removed from the register)
• There must be a process for registrants to appeal the information published and held about them
• Information relating to fitness to practise decisions should not be listed on the register longer than it appears publicly as an FTP panel decision on the public record

Do you agree or disagree that the draft order provides the GMC with proportionate powers for restoring AAs and PAs to the register where they have previously been removed due to a final measure?

Agree

Do you agree or disagree that the draft order provides the GMC with proportionate powers for restoring AAs and PAs to the register where the regulator identifies in rules that it is necessary for the applicant to satisfy the regulator that their fitness to practise is not impaired?

Agree

Do you agree or disagree that the powers in the draft order relating to the content of the register and its publication will enable the GMC to effectively maintain a register of AAs and PAs who meet the standards required to practise in the UK?

N/A for the AOP as specific to associates registration

Do you agree or disagree that the draft order provides the GMC with the necessary and proportionate powers to reflect different categories of registration and any conditions that apply to the registration of people in those categories?

N/A for the AOP as specific to associates registration

Do you agree or disagree that the draft order provides the GMC with proportionate and necessary powers in relation to the removal of AA and PA entries from the register which will enable it to operate a safe and fair system of regulation that protects the public?

Disagree - Removal from the register should be a final step and criteria for a regulator doing so must be fair, transparent and proportionate. The criteria in the draft order for discretionary removal are too widely framed. They could increase the risk of the GMC making unfair removal decisions, without appropriate safeguards. For example, “maintaining a means of effective communication” is not defined in the draft order, and this could be varied interpretation. Similar concerns apply to the provisions for removal for fee non-payment.

The regulators will need to clearly set out rules for the process it will use to take removal decisions, which should include provision for voluntary erasure, and ensure these are fair, proportionate and transparent. Discretionary removals should only be carried out where conduct is persistent or serious, and the regulator has identified misconduct. Case law provides a useful framework here for this determination (Cheatle vs GMC, Mallon vs GMC and others). The DHSC should review the drafting of the order to ensure its provisions better define the basis for appropriate, fair and proportionate removal decisions or better instruct the regulator to set these out in its rules.

Do you have any additional comments on ‘part 3: the register’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

No

Do you agree or disagree that the powers in the draft order enable the GMC to implement a 3-stage fitness to practise process for AAs and PAs proportionately and sufficiently?

Disagree - The draft order should require two case examiners to reach agreement about decisions. Regulators who currently operate a three-stage fitness to practise process, use a model which requires two case examiners to agree on the decisions.

This provides some safeguard against poor quality decisions and unfair outcomes. The draft order here refers to ‘a case examiner’ without specifying how decisions will be reached. This must be revised in order to define decisions as being agreed upon by ‘two case examiners. This is necessary for fairness, consistency, quality and transparency in decisions making for both registrants and the wider public.

As we have explained in other answers, the powers being given to the case examiner already introduce risks of poor decisions into the system. These risks would be unacceptably magnified if decisions could be made by only one case examiner.

Do you agree or disagree that the powers in the draft order enable case examiners to carry out their roles appropriately and that the powers help to ensure the safe and effective regulation of AAs and PAs?

Disagree - We support giving case examiners a role in ensuring that fitness to practise cases are resolved efficiently and fairly. However, it is our firm view if this order was replicated in optics – the GOC’s case examiners as currently constituted should not be given the range of powers proposed in this consultation. These concerns are due to a lack of clarity about the training and skills for case examiners, insufficient assurance about the quality of case examiner decisions, and our direct experience of GOC case examiners.

Our experience of representing our members in GOC fitness to practise cases is that the GOC’s case examiner decisions can be inconsistent and of poor quality, particularly in terms of the way the law is applied to the facts of a case and limited clinical input. We have repeatedly expressed concerns about the quality of GOC case examiners’ decisions in our evidence to PSA reviews of the GOC, and we are aware that at times the GOC has had to review case examiner warnings after auditing them.

Whilst our core concern is with this system of powers is about the system that will be legislated for in optical regulation, the same systemic risks will also be present for the GMC and any other professional regulator. The DHSC consultation and draft order also fails to explain what competences are required for a case examiner. Given the powers that case examiners will be given in the fitness to practise process this needs to be set out.

In our experience representing optical registrants we have found that GOC case examiners have often returned poorly framed allegations which need revisions to improve their quality and appropriateness to the case. This suggests an existing need for better case examiners’ training. If the provisions in the draft order were applied to the GOC, the greater powers given to case examiners and the potential need for a larger pool could worsen these issues, with a greater risk of poor decisions being taken. In order to ensure a safe and efficient fitness to practise system the DHSC must improve and ensure safeguards, and training for case examiners in the system.

An alternative approach would be to amend the regulators’ legislation to ensure that case examiners have the appropriate legal and broader clinical expertise to make sound decisions, and that registrants and their representatives have appropriate opportunities to test allegations and make representations before case examiners propose agreed outcomes or other final measures. This could enable cases to be resolved more quickly, safely and effectively for all parties and reduce the likelihood of appeals being pursued.

Do you agree or disagree that the powers in the draft order enable panels to carry out their roles appropriately and that the powers help to ensure the safe and effective regulation of AAs and PAs?

Agree

Do you agree or disagree that the powers in the draft order on reviewing interim measures are proportionate and sufficient for the safe and effective regulation of AAs and PAs?

Disagree - The process for review here is not sufficient, fair or effective. In our sector the GOC has an interim order committee to review interim measures. Allowing the review to be carried out by the case examiner who set the original interim measure is insufficient and unsafe. There also needs to be provision to request an early review of the interim measure.

The DHSC should amend the draft order to make early reviews necessary if requested by relevant parties, and to make the reviewing body a panel, which include persons who were not involved in setting the interim measure. The rules and processes for these should be set out the by the regulator to ensure transparency, accountability and fairness.

Do you have any additional comments on ‘part 4: fitness to practise’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

As we have explained in previous answers, the DHSC must review and revise the powers given to the case examiner role and specify that decisions be reached at least two case examiners. As currently drafted the lack of clarity about the competence for the case examiner role and the range of powers the role is given lead to unacceptable risks of unsafe decisions for all parties.

Part 5: Revisions and appeals

Do you agree or disagree that the powers in the draft order provide the GMC with proportionate and sufficient powers in relation to the revision of decisions concerning the regulation of AAs and PAs?

Neither agree nor disagree - We broadly support the provisions made for appeals and revisions. However, the DHSC should make one important amendment to ensure there is effective recourse to poor case examiner decisions. Appeals to a lawyer about case examiner decisions should be allowed where ‘procedural error’ has taken place in the way a decision was reached, as well as the grounds already set out in the consultation.

Do you agree or disagree that the powers in the draft order provide individuals with proportionate and sufficient appeal rights in respect of decisions made by the GMC and its independent panels relating to the regulation of AAs and PAs?

Disagree - We have some concerns about potentially unfair and unsafe limitations the wording of the draft order could place on leave to appeal to the High Court. The draft legislation specifies that appeals will only be allowed on the grounds of “error of law”. Decisions taken by GOC fitness to practise panel can currently by appealed to the High Court on the following grounds:

i) A misdirection in law
ii) Some procedural unfairness of irregularity
iii) That the Judge took into account irrelevant matters;
iv) That the Judge failed to take account of relevant matters
v) That the Judge made a decision which was “plainly wrong”

It is our firm view that any future legislative reform of the GOC should allow ground for appeal to the High Court which cover at least the above grounds. It may be the intention of the draft order to cover the above grounds, but the interpretation is unclear from the current wording. The DHSC should review this wording.

Do you have any additional comments on ‘part 5: revision and appeals’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

Our main concerns with the drafting in this section if this was applied to the GOC and optical registrants are:

• Ensuring independent review of case examiner decisions about interim measures, and the ability to request an early review
• Ensuring that the ground for appeal to the High Court is sufficient wide to provide fair recourse to registrants and prevent unfair and unsafe outcomes. The DHSC needs to remedy the undue limitation provided by the singular grounds of “error in the law”. As currently drafted, this is too restrictive for a fair, proportionate and safe fitness to practise appeals process

Part 6: Miscellaneous

Do you agree or disagree that the offences set out in the draft order are sufficient to ensure public protection and to maintain public confidence in the integrity of the AA and PA professions?

Agree

Do you agree or disagree with the proposed powers and duties included in schedule 1 the regulator in relation to AAs and PAs?

Disagree - We support the inclusion of a duty to cooperate with other regulators. However, we have concerns about the risks that could result from regulators being allowed to delegate regulatory functions.

We support the idea of shared back-office functions between the regulators because this should have no impact on patient or public safety. Regulators are already able to work together on issues and contract out some functions under their current rules. However, if a regulator delegates core regulatory functions (such as fitness to practise investigations or assessing educational qualifications) to another party, there is clearly a risk that the party carrying out the work will not have the necessary experience or knowledge of the profession with which it is dealing.

We therefore think delegation powers should only be available for functions where this risk does not arise. If the DHSC choose to allow any core regulatory functions to be delegable then it must put much more robust safeguards in place in order to ensure public protection in the way that regulatory duties are discharged. As a minimum, regulators should be required to seek stakeholder consent through full public consultation. Otherwise, the regulatory system will be open to a whole range of risks and operational complexities which could harm public protection.

Schedule 2 – listed offences

Do you have any comments on schedule 2, listed offences?

We agree that automatic removal is the proportionate response to the seriousness of the offences listed.

Schedule 3 - evidence gathering, notifications, publication and data, including duty to publish results of certain decisions

Do you agree or disagree that the powers in the draft order enabling the GMC to gather, hold, process, disclose and assure information in relation to the regulation of AAs and PAs are necessary and proportionate for meeting its overarching objective of protecting the public?

Neither agree nor disagree - We broadly agree that schedule 2 includes the correct range of powers that a regulator needs to carry out core functions for public protection. However, as explained in our previous answers - we do not think the consultation explains well enough what safeguards should be in place to ensure that information disclosure takes place in an appropriate way that is proportionate to risk and no more than necessary for public protection. We urge the DHSC to provide further assurance about how regulators should use powers to disclose information in an appropriate way, and which follow these principles.

Schedule 4 – rule making power

Do you agree or disagree that the draft order provides the GMC with sufficient and proportionate rule making powers to enable it to effectively maintain a register of AAs and PAs who are safe to practise?

Neither agree nor disagree - We support regulators having an appropriate scope of rule-making powers to allow them to effectively and efficiently carry out their functions without needing to seek legislative change. However, the DHSC needs to better define safeguards and processes which regulator should follow to minimise risks. We think the regulator must be required to seek stakeholder consent through full consultation before undertaking any rule changes which have a substantive impact on registrants or the public. This process should include appropriate impact assessment, risk mitigation and timelines for implementation which are developed with stakeholders to reduce unintended consequences and risks.