The PSA has produced a report that aims to address “some of the biggest challenges affecting the quality and safety of health and social care across the UK today”. Francesca Snape, solicitor at Markel Law, and Melissa Cullen, paralegal at Markel Law, talk through the report’s conclusions.
The Professional Standards Authority for Health and Social Care (PSA) is an independent organisation charged by UK Parliament to oversee 10 Accredited Regulators of 35 different health and care professions in the UK.
One of PSA’s roles involves the production of reports, which helps Parliament monitor and improve the protection of the public by identifying current risks in the regulation of practitioners and strategising solutions.
The latest report proposes solutions to the challenges those in the UK professional health and care regulation sector face in regard to tackling: inequalities, regulating for new risk, facing up to the workforce crisis, accountability, fear and public safety, as well as structural flaws in the safety framework.
The report highlights major inequalities seen both in how patients and service users gain access to, and experience services, but also how staff face inequalities and discrimination in the workplace and within the regulatory process.
The report references research commissioned by the General Medical Council (GMC), which showed that BAME registrants are twice as likely to be referred to the GMC by their employer, compared to their white counterparts. It also flagged that international medical graduates are more likely to be subject to more serious sanctions through the fitness to practise (FtP) process.
The report identifies that although regulators have long been aware of these issues, they are yet to resolve the disproportionate representation of groups with protected characteristics throughout the regulatory process.
The report is clear that regulators, and the PSA itself, must do more to bring about change. The PSA’s report focuses on the importance of regulators collecting data in order to identify and tackle these issues. There appears to be vast differences in the collection of data amongst regulators, with Social Work England having gathered just 5% of diversity data, compared with the General Optical Council (GOC), which has gathered almost 100% of data on registrant diversity.
The PSA makes the following recommendations:
- Regulators should work collaboratively to improve the diversity of fitness to practise panels, other decision-makers and senior leadership to ensure they reflect the diversity of the community more closely.
- Regulators should work with other health and care bodies to gain a better understanding of the demographic profile of complaints and reduce barriers to raising complaints for particular groups.
- Regulators should review how their fitness to practise processes and guidance address allegations of racist and discriminatory behaviour. The PSA has introduced their own Equality, Diversity and Inclusion standards for regulators and will look to ensure that the application of these standards drives improvements.
The PSA recommends a sector-wide initiative to improve collection, analysis and sharing of demographic data of complaints. This is in order to help understand and address inequalities in care and complaints handling.
Regulating for new risks
This section of the report focuses on the vast changes to the provision of health and social care, including the increasing use of technology and online services, as well as the growing proportion of care in the UK being provided by the private sector.
The BMA predicts it will take 25 years to achieve the 50,000 doctors needed at current rates of supply
With new and innovative models of care, trending away from the established models of provision, the PSA highlights that new risks are emerging as a result. For example, the report emphasises that where commercially focused drivers cut across professional judgement, or new technologies blur lines of accountability, this can put professionals in difficult positions, as well as placing patients and service users at risk.
The report places a focus on potential conflicts of interests as a result of the rise in private providers, for example, where doctors sometimes have a financial interest in the business they refer patients to. It refers to the Paterson report as a main example of this issue concluding that the regulation covering financial conflicts of interest in healthcare can be weak and poorly enforced.
Interestingly, the report is also sympathetic to individual registrants, employed by private organisations, in recognising that they can be put in the position of having to choose between meeting the targets set for them by employers and upholding professional standards.
With the delivery of care constantly evolving, the PSA highlights that regulators need to be equipped to meet these changes with agility. The report identifies that regulators face challenges to being agile, due to the risk of challenge if there is no specific duty for them to act, or being hampered by outdated and overly prescriptive legislation, with some lacking the powers they need to protect the public.
The PSA also outlines the steps already being taken to look at oversight of the sector, through the ongoing review of regulatory powers. The report states that appropriate scrutiny and action on issues is made more challenging by the number and range of bodies involved, which means no singular body is able to take a bird’s eye view of emerging risks to patients.
The PSA makes recommendations, including:
- Governments should use the current healthcare professional regulation reform to review the adequacy and effectiveness of the powers of regulators, with a role in regulating businesses - effectively calling for wider powers for regulators.
- Regulators are called on to tackle business practices that fail to put patients first, risk undermining confidence in the professions, or fail to allow registrants to exercise their professional judgement.
- Governments and regulators review how they will determine the lines of accountability for new technologies used in health and social care.
Facing up to the workforce crisis and regulation’s future role
It will come as no surprise to those in the Health and Social Care sector, or indeed the wider public, that the report identifies workforce shortages as a serious issue facing the UK sector. It provides some staggering statistics into the breadth and depth of the problem: for example, the British Medical Association (BMA) predicts it will take 25 years to achieve the 50,000 doctors needed at current rates of supply. The report states that this shortage must be addressed “if care is not to suffer”.
To address shortages, the report postulates that not only Regulators, but also Governments and employers, must prosper in retaining existing professionals, whilst recruiting and training additional ones.
The report is candid in its recognition that the challenge here will not be easily addressed. It acknowledges the time and cost required to train new health and care professionals may not prove to be sufficient ‘to relieve pressures’ on existing health and care professionals. For example, the report notes figures from the Royal College of Nursing (RCN) Wales, which suggest that each week, nurses in Wales give the NHS extra hours to the value of 914 fulltime nurses.
The report recognises the reliance of international recruitment as a means of bolstering UK supply but notes its limitations. Technology is also featured as a helpful tool to “free up capacity”. A direction to “grow our own workforce” as a more sustainable long-term solution is offered.
The report recommends:
- A collaborative approach between Regulators and Registers to identify “opportunities to speed up workforce supply, equip practitioners to deal with future challenges in how care is delivered, close safety gaps and protect patients and service users.”
- Those involved in “health and care workforce planning and delivery across the UK actively support additional and alternative means of assurance as a means of managing risks to patients and service users”.
- A clear process to guide the development of new health and care roles. It also acknowledges that an avenue to deviate from a UK-wide approach may be necessary but states an agreed way should be decided based on the risks and benefits.
- The four UK Governments work together to develop a coherent strategy for the regulation of people, to support delivery of their national health and social care workforce strategies.
Those who work in regulatory law are tuned into the impact that the shortages in the workforce is having on both patients and professionals - not least from the influx of inquests and FtP complaints where this issue is prominent.
The HCPC's most recent PSA performance report found that they had met 13 out of 18 standards, with just one out of five standards having been met in the fitness to practise area.
The recommendations appear to add pressure on regulators to ensure that professional ethics and conduct are adhered to, amidst a more flexible training and entry regime. The report is clear that: “A future regulatory framework must be agile enough to meet workforce needs while continuing to prevent harm.”
Accountability, fear, and public safety
The importance of learning to achieve safety aims is recognised.
There is an acknowledgement of professionals’ fear of being unfairly blamed and note is taken of the delicate balance between this and professional accountability. The report leans on the Ockenden report which highlighted the simultaneous desire to learn from harm, and impose appropriate accountability for unacceptable failures.
The answer is not straightforward. The report makes a number of proposals, including:
- Regulators should do more to clarify and explain their approach to cases where a professional has been involved in a patient or service user safety incident.
- The UK Government should ensure that the ‘safe spaces’ investigation approach being implemented in England does not cut across the duty of candour or otherwise negatively impact on transparency or accountability.
It is accepted that there are limitations to the proposed recommendations and suggests that “an open, sector-wide conversation, with input from patients and service users, professionals, employers, and many others” is needed. We would echo this sentiment.
Commentary and conclusion
Although lengthy, the report succinctly identifies the main issues facing the UK’s health and social care sectors, both currently and in the future. It offers some recommendations that can certainly be acted upon immediately by regulators and the PSA, with others that will likely require government input and may take longer to effect meaningful change.
It’s clear the PSA offers helpful insight and potential solutions to the various issues identified. However, the PSA’s own ability to effect change is often questioned. Whilst responsible for setting standards and assessing regulators against said standards, it’s clear that little progress is sometimes made following a poor PSA performance report.
By way of example, the Health and Care Professions Council’s (HCPC) most recent PSA performance report found that they had met 13 out of 18 standards, with just one out of five standards having been met in the fitness to practise area. This showed no improvement from the two previous annual performance reports. The PSA and its functions are part of the very system that much of the report highlights as being problematic, particularly regarding the effectiveness of regulators, owing to their lack of powers.
For regulators, the report offers insight into what is likely to be expected of them moving forwards, both in terms of the PSA’s own assessments and wider societal expectations, depending upon governments own responses to the issues raised.
Businesses can expect to see greater powers given to regulators, allowing them to undertake more in-depth regulation of their operations, as well as greater emphasis on accountability for technological changes.
For individual professionals, it also provides a helpful understanding of how systemic issues are likely to be viewed and what action regulators are expected to take. It also makes clear that systemic issues must be taken into account in the context of fitness to practise concerns.