Consultation response to the DHSC regulating anaesthesia associates and physician associates

Introduction

Medical Protection Society (MPS) is the world’s leading member-owned, not-for-profit protection organisation for doctors, dentists and healthcare professionals. Our in-house experts assist members with the wide range of legal and ethical problems that can arise from their professional practice. Of particular relevance to this consultation, we provide assistance to members in the UK who are being investigated by the GMC and by other medical and dental regulators around the world.

We welcome the publication of this consultation which introduces the regulation for Physician Associates (PAs) and Anaesthesia Associates (AAs). If these professionals are to grow in number and take on further responsibilities within healthcare teams, we understand they should be subject to professional regulation.  

In this consultation, the government is proposing not just to introduce two emerging professions into regulation but also to introduce some long talked about and significant changes to how healthcare professional are regulated. These include the introduction of accepted outcomes and broadly, a more enabling framework for a regulator that provides more discretion over how they implement their powers (albeit we believe more clarity is needed in the Order to clearly state to what extent regulators would have the power to determine when to investigate and how). In this submission, we provide comments in response to each of the questions to inform policy development in the regulation of PAs and AAs but also in the understanding that these proposals are intended to provide a template for reform in relation to other professions.

In our view, according to the current Section 60 Order as drafted, PAs and AAs will have less protection from interference by their regulator compared to other healthcare professionals, such as doctors. For example, under the proposed reforms, registrants that do not respond within the time period prescribed by the GMC will be vulnerable to sanctions including erasure being imposed without a hearing even though the allegations have not been proved , and they will potentially also be more vulnerable to investigations relating to historic allegations where the concerns will be very difficult to prove and the events concerned are less likely to be reflective of their current practice.

We also have particularly strong concerns about the proposal to remove health as a category of impairment as we believe this could have unintended consequences on healthcare professionals with health concerns who end up under investigation by the GMC given these concerns may be greatly exacerbated by the stress and anguish caused by being subject to an investigation.

The issues we raise in each of these areas should not just be a concern for PAs and AAs but also for healthcare professionals more broadly as we understand that these proposals are intended to provide a template for the regulation of other professions including doctors and dentists. We think that our concerns in each of these areas can be resolved with relatively simple amendments following this consultation and prior to the legislation being laid before Parliament.

We would also like to highlight that we think the DHSC and GMC should undertake to communicate with PAs and AAs about the importance of having legal representation as well as advice in case their fitness to practise is questioned. At MPS, we will of course look to communicate this point ourselves. We do however believe it is also right for the government and regulator to take responsibility of communicating this point as part of the process of introducing individuals to regulation, and also that the GMC should consider providing this advice as part of their core guidance.

More broadly, we would like to raise our concern that there is no clear timescale for the introduction of wider amendments to the Medical Act and the Dentists Act that could lead to improvement in the way that doctors and dental care professionals are regulated. In addition to this, we have concerns with the prospect of the GMC regulating PAs and AAs under a different legislative framework than the one that will remain in place for doctors up to and until wider changes are made to the Medical Act. This will create disparities between how different professions are regulated by the same regulator.

Finally, we are very disappointed that it will soon be five years since the government agreed with the Williams review proposal to remove the GMC right of appeal against Medical Practitioner Tribunal Service (MPTS) decisions. We have long argued that the removal of Section 40a of the Medical Act would be a simple step that the government should prioritise. The lack of progress in this area will be particularly frustrating for doctors given the GMC can and will continue to appeal against MPTS decisions in relation to doctors but we understand under the new legislation they will not be able to do so in relation to PAs and AAs.

Aside from the points covered in this consultation, we urge the DHSC to remove the GMC right of appeal against MPTS decisions about doctors’ fitness to practise as a priority before the end of this Parliament, and also to make progress with reforms to the Medical Act aimed at improving the regulation of doctors without further delay.

Part 1: general

This part of the legislation sets out the name of the order The Anaesthesia Associates and Physician Associates Order (the draft order) and the date provisions come into force. It also lists the definitions of certain words in the draft order. Included in this list is confirmation that any reference in the draft order to a person’s fitness to practise being impaired is a reference to impairment by reason of:

• inability to provide care to a sufficient standard or

• misconduct

These are the new grounds for action which will introduce consistency across regulators and clarify to the public and associates the circumstances in which action can be taken. The terms that we have decided on are different to those we initially consulted on which were ‘misconduct’ and ‘lack of competence’.

1. Do you have any comments relating to part 1 general of the consultation? (optional)

MPS considers the definition of ‘Interim Measure’ as currently drafted in Article 2 to be of limited assistance. In our view, the definition should explain when and in what circumstances an interim measure can be applied to a registrant’s registration.

MPS opposes the grounds for action set out in Article 2 (2) of the Order, in that they seek to condense the possible grounds of impairment into only two grounds: inability to provide care to a sufficient standard; or misconduct.

Currently, there are six grounds for action or impairment in fitness to practise cases involving doctors as set out in Section 35C(2) of the Medical Act 1983: misconduct, a criminal conviction or caution, deficient professional performance, adverse health, lack of knowledge of English language, and determinations by other regulatory bodies to the effect that the registrant’s fitness to practise is impaired.

MPS understand the intention from the government to perhaps simplify the grounds for action, however we strongly oppose the proposal to not retain health as a separate category and the potential unintended consequences that could arise A significant proportion of professionals who end up under investigation by their regulator have health concerns. These health concerns can be greatly exacerbated by the stress and anguish caused by being subject to such an investigation. This is demonstrated by the deeply concerning number of health professionals who die by suicide each year while under investigation. It is therefore very important that regulators and other bodies continue to do everything possible to minimise the impact of those under investigation, particularly those with a health concern.

Categorising registrants with a health concern under “inability to provide care to a sufficient standard” could be perceived as implying fault on the part of the registrant. We fear that this may negatively impact their existing health issues. It could also discourage registrants from seeking the help they need, adding further anxiety and exacerbating any existing mental health problem.

 MPS and other organisations stated similar concerns in response to the 2021 consultation at which point it was proposed that concerns relating to a doctor’s health would be investigated under ‘lack of competence’ grounds. While we think that “inability to provide care to a sufficient standard” is preferable to “lack of competence”, we regard the terminology as pejorative and unhelpful and that this would be a step backwards at a time when all parties are working to minimise the impact of investigations on healthcare professionals.

Part 2: standards and approval

As outlined in part 2 standards and approvals section of the consultation, article 3 sets out the GMC’s duty to set standards in relation to education and training and registration. Article 4 sets out the GMC's approval power and article 4 (3) provides the GMC with the power to coordinate all stages of education and training of associates. This, in conjunction with schedule 1 paragraph 3 (1)(d) and its incidental powers, will provide for the GMC to have an overarching role in the education and training of AAs and PAs.

2. 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? (optional)

This question does not relate to the GMC’s powers for setting the standards for registration contained in Part 3.

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS understands the case for the GMC having similar powers with regards to the education and training of PAs and AAs as they do with other medical professionals, and that they should work with the relevant colleges and faculties in a similar way.

3. 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? (optional)

MPS does not have any further comments on this question.

Part 3: the register

• article 3 of part 2 of the draft order requires the GMC to set the standards required for registration as an anaesthesia associate and physician associate

• article 5 of part 3, and schedule 3 of the draft order set out the duties and powers for the GMC to manage the content of the register

• article 6 of the draft order sets out the standardised requirements for registration as an associate with the GMC, and for restoration to its register

• article 7 of the draft order sets out the GMC’s powers to set conditions relating to the registration of associates

• article 8 of the draft order sets out the duties and powers for the GMC to remove entries from the register

• schedule 4 of the draft order details the rule making powers for the GMC to set out the detailed requirements for joining, varying and remaining on its register

4. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

Article 5 of the draft Order establishes a single register for registrants that may not be divided (i.e. no specialist register). This differs from the register for doctors which is divided by specialty. This could be confusing for patients and healthcare professionals alike, especially were Associates to use terms such as ‘specialist’ or ‘specialising in’ to describe their experience.

Good Medical Practice (GMP) and the MPTS sanctions guidance advocate taking into account the relative grade and experience of the practitioner when deciding what behaviour may or may not have been appropriate and what sanction might be imposed based on the stage of the doctor's career. This is something that would be important to take into consideration when deciding the merits of a single register if there is potential for there to be different grades of PAs and AAs as there is for doctors.  

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

• the regulator identifies in rules that it is necessary for the applicant to satisfy the regulator that their fitness to practice is not impaired

5. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

Please explain your answer. (optional)

MPS does not have any further comments on this question.

6. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• don't know

 Please explain your answer. (optional)

 MPS does not have any further comments on this question.

7. 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?

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

Please explain your answer.

As expressed in our response to Fitness to the Practice section, MPS disagrees with the extent of the proposed powers for the GMC to publish information relating to a registrant’s fitness to practise. MPS believes that only decisions that result in at least a warning being imposed on the individual’s registration should be published.  It would, for instance, be unfair to publish a decision to refer a matter for a hearing before the MPTS without those matters having first been found proved by the panel hearing the case. Moreover, if a case examiner’s decision to conclude a case with no further action were to be published, this could cause unnecessary reputational harm to the registrant. This would have the consequence of undermining the registrant’s confidence; making them more prone to making errors; whilst also encouraging unmerited or even disingenuous complaints.

8. 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?

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

 Please explain your answer.

As per our response to question 4, Article 5 of the draft Order establishes a single register for registrants that may not be divided (i.e. no specialist register). This differs from the register for doctors which is divided by specialty. This could be confusing for patients and healthcare professionals alike, especially were Associates to use terms such as ‘specialist’ or ‘specialising in’ to describe their experience.

9. 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?

• Agree
• Disagree
• Neither agree nor disagree
• I don't know 

Please explain your answer.

MPS does not have any further comments.

10. 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? (optional)

MPS does not have any further comments on this section

Emergency registration

When responding to the question below, please refer to the emergency registration section of the consultation.

11. Do you agree or disagree that the draft order provides the necessary powers to enable the GMC to implement an efficient and safe system of temporary registration for AAs and PAs during a period of emergency as declared by the Secretary of State? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

 Please explain your answer. (optional)

MPS does not have any further comments on this question.

Part 4: fitness to practise

As outlined in part 4 fitness to practise section of the consultation, the draft order will enable a 3-stage fitness to practise process consisting of the initial assessment stage, the case examiner stage, and the fitness to practise panel stage. We are of the view that the case examiner stage and the fitness to practise panel stage should be set out in the draft order. However, we do not believe the draft order needs to prescriptively set out the process for the initial assessment stage as the GMC can set out the initial assessment stage in rules, under the rule making power in schedule 4, paragraph 3(1)(a) of the draft order.

As described in the section case examiner and panel functions where fitness to practise question arises in the consultation, article 9 sets out that where a question arises as to whether a person’s fitness to practise is impaired, a case examiner will be able to decide whether the associate’s fitness to practise is or is not impaired. Articles 9 and 10 enable a case examiner to refer a case to a panel to:

• impose an interim measure on an associate

• make a determination on a case

• or apply for an extension of a maximum of 12 months before the interim measure expires (as described in the interim measures section of the consultation

12. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS agrees in principle with the proposal of a 3-stage process for all regulators, however we have some concerns around the clarity of this process and whether it gives sufficient power to the Regulator to decide when to investigate.

Responding to the 2021 consultation, Regulating healthcare professionals, protecting the public, we stated that we strongly agree with the proposed new power for regulators to decide whether to investigate. We see this as a particularly important proposal which we would like to see implemented as a priority. However, we are not sure that this is sufficiently clear in this Order.

Under the current legal framework, regulators are too often required to investigate

allegations even when it’s apparent that there will not be any regulatory action. The majority of regulatory investigations are closed without action, the end result being that over a thousand registrants go through an investigation each year without a sanction, while many complainants go into the process with false expectations and end up disappointed with the outcome.

We believe the government should make clearer in the Order that the Regulator will have discretion on when to investigate at the initial assessment stage so that they can determine what to investigate.

With regards to accepted outcomes, MPS can see the benefits in the inclusion of ‘accepted outcomes’ under Article 9 of the Order, and we support the intention of reducing the need for a hearing in cases where the doctor agrees with the sanction proposed by the Regulator. However, we remain cautious as we are concerned with the significantly increased powers and lack of independence from the Regulator this will give to case examiners. We are concerned with the lack of finality – given the prospect of a review without a time limit specified for such review -. In our view, any review should take place within 2 years unless there are exceptional circumstances.

We are also concerned with the prospect of unrepresented registrants or those unable to meet the cost of preparing a response for the case examiners and / or having appropriate legal representation at a full hearing being more susceptible to accept and unduly harsh outcome.

MPS does not agree with the power set out in Article 9(2)(b) that would have the effect of allowing the case examiners to impose a final measure in the absence of either a response or a ‘reasoned response’.  We believe that if a registrant does not respond or the response is not deemed to be ‘reasoned’ (which is in itself problematic as it is open to subjective interpretation), then the matter should go to a fitness to practise panel for determination at a hearing.  Otherwise, MPS is of the view that unrepresented registrants and particularly those with a different cultural background will be disproportionately prejudiced.

MPS is concerned that Article 13(4) would empower the GMC’s case examiners to impose an Interim Measure without giving the registrant an opportunity to make representations if to do so would not be ‘practicable’.  Again, this is different from how doctors are regulated and has the potential for being abused.  Consequently, and at the very least, safeguards should be in place to include a requirement on the GMC to list a review hearing before the MPTS as soon as possible, unless the registrant has confirmed they do not object to the Interim Measure imposed.

MPS is concerned that all reviews of Interim Measures (except for those requiring an extension of the duration of the order) are to be carried out by case examiners and not by an MPTS panel, as is the case for doctors. This reduces the protections afforded to AAs and PAs from disproportionate interference with their freedom to practise, as there would be no independent scrutiny of the need to maintain the interim order and / or the progress of the substantive investigation.

MPS disagrees with the extent of the proposed powers for the GMC to publish information relating to a registrant’s fitness to practise. MPS believes that only decisions that result in at least a warning being imposed on the individual’s registration should be published.  It would, for instance, be unfair to publish a decision to refer a matter for a hearing before the MPTS without those matters having first been found proved by the panel hearing the case. Moreover, if a case examiner’s decision to conclude a case with no further action were to be published, this could cause unnecessary reputational harm to the registrant; a perception of ‘there’s no smoke without a fire’. This would have the consequence of undermining the registrant’s confidence; making them more prone to making errors; whilst also encouraging unmerited or even disingenuous complaints.

MPS suggests that where possible, the GMC’s publication powers should mirror those set out in Section 35B of the Medical Act 1983 (as amended).

It is our understanding that the government intends to use this model as a template for further reform of the professional regulators so we would like to warn against certain regulators having a tendency to overpitch sanction submissions. 

13. 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? (optional)

•  Agree
• Disagree
• Neither agree nor disagree
• I don't know

Please explain your answer. (optional)

MPS partially agrees that the powers enable case examiners to carry out their roles appropriately.  As per our answer to question 9, we are concerned with the prospect of this Order giving case examiners greater powers with a lack of independence from the Regulator.

We also stated above our concerns regarding the power given to case examiners as per Article 9(2)(b) that would have the effect of allowing the case examiners to impose a final measure in the absence of either a response or a ‘reasoned response’; and Article 13(4) which would empower the GMC’s case examiners to impose an Interim Measure without giving the registrant an opportunity to make representations if to do so would not be ‘practicable’.

Lastly, we are also concerned with the provision that all reviews of Interim Measures (except for those requiring an extension of the duration of the order) are to be carried out by case examiners and not by an MPTS panel, as is the case for doctors. This reduces the protections afforded to AAs and PAs from disproportionate interference with their freedom to practise, as there would be no independent scrutiny of the need to maintain the interim order and / or the progress of the substantive investigation.

14. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS does not have any further comments on this question.

15. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

Please explain your answer. (optional)

We agree with the proposal that Interim Measures should not be imposed for longer than 18 months. This should help to ensure that a registrant is not kept on conditions for longer than is necessary and would also bring earlier consideration of those cases in which a registrant may not have been complying with the conditions or suspension.  

Article 13(4) enables the GMC’s case examiners to impose an Interim Measure without giving the registrant an opportunity to make representations if to do so would not be ‘practicable’. This is different from how doctors are regulated and this also has the potential for being abused. Consequently, and at the very least, safeguards should be in place to include but not limited to a requirement on the GMC to list a review hearing before the MPTS as soon as possible unless the registrant has confirmed they do not object to the Interim Measure imposed.

MPS is concerned that all reviews of Interim Measures (except for those requiring an extension of the duration of the order) are to be carried out by case examiners and not by an MPTS panel, as is the case for doctors. This reduces the protections afforded to AAs and PAs from disproportionate interference with their freedom to practise, as there would be no independent scrutiny of the need to maintain the interim order and / or the progress of the substantive investigation.

16. 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? (optional)

In this consultation the government is proposing not just to introduce two emerging professions into regulation but also to introduce long talked about and significant changes to how healthcare professionals are regulated. These include the introduction of accepted outcomes and more broadly a more enabling framework for a regulator that provides more discretion over how they implement their powers (albeit we believe more clarity is needed in the Order to clearly state to what extent regulators would have the power to determine when to investigate and how).

 In our view, according to the current Section 60 Order as drafted, Anaesthesia Associates and Physicians Associates will have less protection from interference by their regulator compared to other healthcare professionals such as doctors. For example, Article 9 (2) (b) will allow case examiners to impose a Final Measure if a registrant does not provide a ‘reasoned response’ to a notification of a proposed Final Measure after the period prescribed by the GMC. We believe this provision is problematic for several reasons:

• It has the impact of reversing the burden on proof, i.e., places the emphasis on the registrant to satisfy the GMC that their fitness to practise is not impaired. This is not the case for other regulated healthcare professions, including doctors. 

   

• What is or is not ‘reasoned’ could be open to subjective interpretation by the GMC.

   

• Unrepresented registrants and especially those for whom English is not their first language would be particularly disadvantaged, as they are likely to struggle to comprehend the legal process/requirements and what may or may not be accepted as a reasoned response in this context.  This is particularly important for PAs and AAs as they are a group of practitioners who may not be used to engaging with the regulator in the way that doctors are. As mentioned in our introduction, we believe the DHSC and GMC should undertake to communicate with PAs and AAs the importance of having legal representation as well as advice in case their fitness to practise is questioned, and also that the GMC should consider providing this advice as part of their core guidance.

We believe that if a registrant does not respond within the time prescribed by the GMC , then the case examiner decisions should not be imposed. Instead that should go to a fitness to practise panel, since it has not been agreed/accepted.

The proposed approach would also likely create further distrust of the regulator and emphasise the perception of the regulator as a prosecutorial body.

Part 5: revisions and appeals

Part 5, articles 11 and 12 set out the powers that the GMC, associates and applicants have to revise and appeal decisions made by the GMC in respect of education and training approvals, registration and fitness to practice.

17. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS does not have any further comments on this question.

18. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

Article 12(1)(e)(i) is not clear. We believe it would be helpful if the drafting could make clear that the registrant could appeal either or both of the following: that a Final Measure has been imposed; and/or the type of Final Measure imposed.

Article 12(b)(ii) establishes the scope of appeal of a fitness to practise panel’s decision, and it states that this is limited to ‘errors of law’. There is no such limitation for doctors in the Medical Act. MPS believes that PAs and AAs should not have fewer rights in this respect and therefore oppose this as currently drafted.

19. 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? (optional)

MPS does not have any further comments on this question.

Part 6: miscellaneous

Article 13 of part 6 of the draft order sets out the duties that the GMC has to consider representations made in respect of decisions and appeals relating to education and training approvals, registration and fitness to practise.

Article 14 sets out the offences created by the draft order in relation to use of protected titles, registration and the content of the register.

20. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS does not have any further comments on this question.

21. Do you have any additional comments on part 6 miscellaneous in relation to the drafting approach as it would apply to any regulated healthcare professionals? (optional)

MPS does not have any further comments on this question.

Schedule 1: the regulator

This schedule provides powers and duties in relation to the regulator and sets the basic framework for the way the GMC will operate to regulate AAs and PAs. The GMC's overall governance framework will continue to be legislated under the Medical Act 1983 after the order comes into effect.

Powers and duties contained within this schedule cover a number of different areas such as:

• appointments

• delegation

• the GMC’s operating requirements

• default powers of the Privy Council

• incidental powers and

• grant making power

For further information please see schedule 1 of the draft order and the consultation on GOV.UK.

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

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS does not have any further comments on this question.

23. Do you have any additional comments on schedule 1 the regulator in relation to the drafting approach as it would apply to all regulated healthcare professionals?  (optional)

MPS is generally supportive of the proposed powers and duties of the Regulator. However, we have some concerns with the objectives as stated on schedule 1, article 3(1). According to this schedule the Regulator “(a) has the objective of promoting and maintaining—

(i) public confidence in, and

(ii) proper professional standards and conduct for members of, the anaesthesia associate and physician associate professions;”.

This is in line with the current objectives; however, MPS’ view is that the professional regulators should be freed from their requirement to promote and maintain public confidence in all health and care professionals, including anaesthesia associate and physician associate professions.

A wide range of polls show that public confidence in the healthcare professions has remained consistently high over many years. This is a result of the continuing professionalism, expertise, patient focus and hard work of the vast majority of healthcare professionals. The maintenance of this position of confidence is also enhanced by having a regulator that is focused on protecting the public and maintaining proper professional standards.

Continuing public confidence in the professions should be one of the desired outcomes from having a regulator focused on protection of the public; ensuring ‘public confidence’ in the professions should not form part of the purpose of the regulator that guides their actions.

This is not an issue of semantics. We question whether it is fair and appropriate for individual health professionals to face a sanction being imposed by their regulator on the basis of what action it thinks is needed in order to maintain public confidence in the wider profession. We also question whether it is fair or realistic to expect a professional regulator to sufficiently understand what actions it can and should take in order to help maintain public confidence in the professions.

Schedule 2: listed offences

This schedule lists the offences that would lead to automatic removal from the register.

The listed offences we consulted on mirrored those set out in schedule 3 of the Social Workers Regulations 2018. The schedule also includes 2 additional offences which we identified following consultation. These are section 1 and section 2 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.

24. Do you have any comments on schedule 2 listed offences? (optional)

MPS does not have any comments on this section.

Schedule 3: evidence gathering, notifications, publications and data

This schedule provides powers and duties in relation to information and data. It covers areas such as:

• disclosure of information

• notifications

• power to publish

• duty to publish registration information and certain decisions

• duty to publish other matters

• reporting information

• evidence gathering

• disclosure

For further information please see schedule 3 of the draft order and the consultation on GOV.UK.

25. 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? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know

 Please explain your answer. (optional)

MPS disagrees with the proposals under schedule 3, power to publish, which allow the Regulator discretion to decide which information related to fitness to practise they may want to publish if it considers in the public interest to do so. We believe that only decisions which result in at least a warning should be published.  It would be unfair if a decision to refer was published as it is still open to a panel to find none of the grounds proved.  Moreover, if the case examiners decision to conclude a case with no further action were to be published, this would cause unnecessary reputational harm to the registrant; thereby, undermining their confidence and encouraging unmerited complaints.

We also have concerns with the powers under schedule 3 article 7(4) which allow the Regulator to require a person to supply information. There should also be controls on what additional information a Regulator can then require a registrant to provide in the future (as additional material not currently provided) in order that it may be published.

26. Do you have any additional comments on schedule 3, evidence gathering, notifications, publication and data, in relation to the drafting approach as it would apply to any regulated healthcare professionals? (optional)

MPS does not have any comments on this section.

Schedule 4: rules

This schedule provides the GMC with further rule-making powers in relation to:

• registration

• the register

• appeals

• panels

• non-compliance

• fees

• notifications

• panel appointments

• fitness to practise

• revision and appeal

• evidence gathering and

• general provision

For further information please see schedule 4 of the draft order and the consultation on GOV.UK.

27. 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? (optional)

•  Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS agrees with this statement subject to the concerns we have previously stated.

28. Do you agree or disagree that the draft order provides the GMC with proportionate and sufficient rule making powers to address non-compliance of AAs and PAs? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS agrees broadly that the draft order provides the GMC with proportionate sufficient powers to address non-compliance using mechanisms such as “adverse inferences”. However, we are concerned with the Regulator’s current interpretation that if a registrant chooses not to comply with a request to prove a requirement, their non-compliance could be taken as evidence that they do not meet such requirement. In our view, non-compliance with a request should be charged as an allegation of misconduct.  This ensures that there is no reversal of the burden of proof and that it is for the regulator to demonstrate that the request itself was reasonable.

29. Do you agree or disagree with the provisions set out in the draft order for the setting and charging of fees in relation to the regulation of AAs and PAs? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)

MPS believes that regulators should be able to set and change their fees, but there would need to be transparency around what they are charging, who they are charging and for what. All income received must be used to offset the cost of regulation and not be a profit-making venture.

In our view, the cost of regulating AAs and PAs should not be borne by doctors on the medical register. We do however note that the cost of regulating doctors by the GMC is higher than for other professionals regulated by HCPC and we have concerns about the potential cost that could be incurred by PA and AAs. We would therefore support the initial transition costs of introducing regulation being met by the state, complemented by efforts by the GMC to ensure the ongoing cost of regulating these professionals is proportionate.

30. Do you agree or disagree that the rule making powers set out in the draft order will enable the GMC to deliver the safe and effective regulation of AAs and PAs? (optional)

• Agree
• Disagree
• Neither agree nor disagree
• I don't know
  

Please explain your answer. (optional)
MPS agrees that the rule making powers set out in the draft order will likely enable the GMC to regulate AAs and PAs safely and effectively.

We also welcome the provisions under schedule 4, paragraph 14, that make it compulsory for the Regulator to consult – although to the extent it considers proportionate - any group who may be affected by any significant changes. We would like to note that indemnity organisations should be in the group of people that the Regulator must consult with before making any changes to its rules. 

31. Do you have any additional comments on schedule 4 rules, in relation to the drafting approach as it would apply to all regulated healthcare professionals? (optional)

MPS does not have any comments on this question

Schedule 5: consequential amendments

In addition to the overarching legislative framework that the draft order provides, a number of consequential changes to other pieces of primary and secondary legislation will also need to be made to ensure that legislation relating to regulated healthcare professionals is updated, where appropriate, to reflect the regulation of AAs and PAs. Please see schedule 5 of the draft order and the consultation on GOV.UK for further detail.

32. In relation to schedule 5 consequential amendments, do you have any comments on how the draft order delivers the policy intention in relation to AAs and PAs? (optional)

MPS does not have any comments on this question.

 
33. Would you like to provide and further comments on the draft order? (optional)

MPS would like to highlight the importance of the existing five-year rule and urge the Department to introduce it into this Order with regards to the regulation of PAs and AAs.

In our response to the 2021 consultation, we stated that we believe the Rule 4(5) of the GMC Fitness to Practise Rules 2004 should remain. This rule states that “(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed” .The five year rule should remain for all professional regulators with the power for a Regulator to investigate an allegation where there are exceptional reasons for doing so, such as, the concerns raised are of a type that if proved could result in the registrant being removed from the register.  There is a public interest in concerns being raised quickly so that they can be properly investigated and result in a fair outcome, whatever that may be.

Not including a 5-year rule for PAs and AAs could also disincentivise complainants from raising their concerns sooner which, in turn, could increase the risk to patients by allowing an otherwise unsafe healthcare professional to continue to practice. 

Costs, benefits, and equalities considerations

Throughout this project we have looked to consider any potential impacts of the introduction of regulation for AAs and PAs under reformed legislation.

We have sought further information through 3 public consultations and used these to inform our approach in refining the draft legislation:

• Promoting professionalism, reforming regulation

• The Regulation of Medical Associate Professions in the UK

• Regulating healthcare professionals, protecting the public

(Links to these consultations are provided once your survey has been submitted.)

Further detail on the possible impacts identified can be found in the cost, benefits and equalities section of the consultation on GOV.UK.

34. Do you think there are any further impacts (including on protected characteristics covered by the public sector equality duty as set out in the Equality Act 2010 or by section 75 of the Northern Ireland Act 1998) from the legislation as currently drafted? (optional)

In response to question 13, we have already highlighted how the proposed powers for the case examiner to impose an Interim or Final Measure where the registrant has not been given an opportunity to respond (in the case of Interim Measure); or has not responded or is deemed to not have provided a 'reasoned response' would have a disproportionate impact on registrants from ethnic minorities, overseas graduates or those whose main language is not English.

There is significant evidence in the public domain regarding the extent to which ethnic minority healthcare professionals are more likely to be referred to their regulator and to receive a sanction compared to white healthcare professionals. In the case of doctors, ethnic minority doctors are twice as likely to be referred by their employers to the GMC compared to white doctors.

This situation should concern all respondents to this consultation and other consultations that propose reforms to professional regulation. It is important that due consideration is given to how each of the proposals could both positively and negatively impact people with protected characteristics.

We welcome the intention behind the comments made by the Chief Executive of the GMC on 11 May 2021, where he stated that the shameful disadvantage ethnic minority doctors still experience could be tackled by giving greater autonomy to the GMC so they can focus on supporting and nurturing doctors rather than simply stepping in when things go wrong.

Some of the proposals in this consultation if introduced for other currently regulated professions could provide an opportunity to regulators to positively address current inequalities in how complaints against healthcare professionals are made and handled. It does however have to be noted that giving professional regulators more freedom to determine how cases are handled could also have an adverse impact, and this will make it all the more important that regulators continue to report on the respective experience of registrants with different protected characteristics, what they are doing to address any inequalities and to keep this under review.

About MPS

MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals with almost 300,000 members around the world.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

MPS is not an insurance company. We are a mutual non-for-profit organisation and the benefits of membership of MPS are discretionary as set out in the Memorandum of Articles of Association.

Contact

Should you require further information about any aspects of our response to this consultation, please do not hesitate to contact us.

Patricia Canedo
Policy and Public Affairs Manager
[email protected]