Sunday, 13 May 2018


There is an old saying. Bad cases make bad law. Legislation is drafted as an overreaction often has unintended consequences. Whilst it is easy to become upset or even angry over the activities of medically unqualified quacks, it is not as simple as banning them. Potentially, an incorrectly drafted amendment to legislation could have massive impacts on the NHS. Hence there is a need for a more dispassionate and pragmatic approach.

In theory, existing legislation does provide the kind of safeguards necessary but reality is rather different. It's a patchwork with multiple regulators whose ability to act or interest in acting are often minimal. It can be very reactive, driven by actual harms rather than identifying risk and proactively eliminating/mitigating risks of harm.

Throwing the baby out with the bathwater
There are tens, if not hundreds of thousands of people working in health and social care who don't have officially recognised qualifications. Many work in the State sector (NHS, local government Childrens and Adult services) and increasingly in the voluntary sector (funding is complicated and blurs some lines) and the private sector. The majority of them work effectively and without issue.

Many have extensive training, even to a postgraduate level. Some have very well regarded vocational training, even it is not recognised in law. Arguably some of these professionals are just as well qualified, trained and professionally responsible as the statutorily recognised professions. Many employers, including the NHS certainly think so.

The majority of them work for responsible organisations and in general, these organisations have regulatory oversight. In England, the Care Quality Commission oversees the functioning of many different types of organisations/establishment -

Scotland has the Care Inspectorate, Wales the Care Inspectorate Wales and Healthcare Inspectorate Wales, Northern Ireland the Regulation and Quality Improvement Authority. Whilst things can and do go wrong in organisations/establishments registered with/inspected by these organisations, the biggest concerns are with organisations and individuals that sit outside of this system.

Most of these individuals are self-employed. They may operate out of clinics that are registered with the CQC et al or not. They may operate out of "therapy rooms" that are rented by the hour or they may work from home or even visit clients in their own homes. These individuals may well belong to a voluntary regulator that takes patient/client safety etc very seriously. Or they belong to a voluntary regulator that is indifferent or to no regulator at all. The vast majority will have liability insurance.

The majority of these individuals are likely to practice without issue. They stay within the limits of their competence. Previous posts seem to demonstrate that the potential risk of harm, neglect and so on is associated with practicing outside of the limits of competence.

Amendments to legislation must not impinge greatly upon the vast majority of non-statutorily recognised health and social care workers. There is a case to be made for an overall strengthening of oversight but too draconic an approach could have massive implications for health and social care - increased costs, difficulty in recruiting and training staff and yet more administrative hoops to jump through.

Much is made of "right touch" regulation but it's never made very clear what this means in practical terms.

One of the obstacles to amending legislation is the lack of clear definition in law regarding health and social care. Some can be tautological - eg the practice of medicine is what doctors do and what doctors do is practice medicine. The language of any amendment will therefore require very careful thought. It may not possible to draft an amendment that is without vagueness subject to a range of interpretation.

Impacts on other legislation
Amendment to one piece of legislation can have have impacts on other legislation, especially if it changes definitions. How far ranging might impacts be? Unknown and would require extensive legal research. To preserve the meaning of this other legislation may require amendment to it.

With primary legislation, this is a big deal. Such amendments would have to be approved by Parliament/Assemblies. This is not necessary for secondary legislation but, even so it makes the whole process more difficult, more consuming.

Stand alone primary legislation that did not affect other legislation would be ideal but it's not currently clear if this is feasible.

Legislation doesn't exist in a vacuum. Some body has to be responsible for enforcement and be granted enforcement powers by legislation. Of course, criminal offences can be purely a matter for the Police and the Crown Prosecution Service but the Police are likely not best placed to deal with this.

Creating a new regulator is fraught with difficulty. A lot has to do with funding but there are also practical difficulties. It's probably better than an existing regulator has it's functions broaded and powers enhanced. The CQC et al are obvious candidates but ithe CQC suffers from underfunding and understaffing. It currently doesn't have the necessary powers.

Mention of funding is important. There is a tendency with Government to try to make regulators self-funding. This works perfectly well when what is being regulated is primarily the private sector, but when its the NHS or local government that is being charged fees for registration, all that is happening is that public money is being pushed around for no real reason. This results in the creation of extra bureaucracy and the actual transactions do incur costs in themselves. 

There is an argument that if the role of the CQC is going to change, its entire role should be re-examined. Whether or not it is currently performing is well is could on public protection is a moot point. But this would be true of any regulator.

Creating a vast bureaucracy to manage what is (hopefully) a rare problem would be overkill. It's also the case that very often the larger an organisation becomes, the more interested in becomes in itself, external targets etc rather than its core responsibilities. They also become sclerotic and slow to act.

The emphasis on very much on people who are very amateur - in the sense of the opposite of professional. It is unreasonable to expect voluntary compliance with best practice, guidance, standards and ethical norms. It may well be the case that only draconian sanctions would act as a deterrent. It may also be the case that strict liability should apply - no mitigation due to ignorance of the law, motivation irrelevant.

The next post will examine the UK legislation (or lack of) that allows lay practitioners to go about their business.

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