Professional Standards Authority – Rethinking Regulation

Posted by James Danks on

"If regulation was going to improve care, it would have done it by now. So it's time to improve regulation"

In August 2015, the Professional Standards Authority ('PSA') produced its long-awaited report regarding its view of the current state of regulation in healthcare. Considering the report concludes with the above quote, it should be clear that the report suggests some extreme changes to the current system even after, or perhaps despite, the Law Commission's 2014 draft bill that "set out only to tidy up what already existed".

The issues

The PSA (including in its previous guise) has now been overseeing healthcare regulation in the UK since 2003 and, as so often with a fresh set of eyes looking at a situation, is concerned with a number of areas but reserves significant criticism for the legislative process that underpins this area of regulation. The PSA see it as "slow and generally behind trend, neither keeping pace with current changes nor anticipating future needs". This is mirrored in its view that the development of regulation of a diverse number of professions over the past century has led to a lack of consistency, standards and efficiencies between different regulators, which in turn causes costs that are either unnecessary or disproportionate.

Even if the PSA did view the current state of regulation as being suitable, it expresses real concern that regulators are not being sufficiently proactive for future regulation in light of the dynamic nature of social trends including:

  • Public expectations and increased demand for accountability;
  • Movement of healthcare workers specifically from low to higher income countries that exacerbate regional imbalances;
  • Greater life expectancy despite an increasing risk of non-communicable diseases, such as cancer, and obesity;
  • A shift to more care being delivered at home and in the community.

Because of all of this, the PSA feel there needs to be increased certainty as to what purpose regulation is being asked to carry out. What is its role in the future? Unless there is some renewed focus on this area, then the PSA has concerns regarding "regulatory mission creep", something which confuses the public and creates an internal conflict of interest.

The PSA's plan and proposals

The issues that the PSA has raised inevitably require some specific, far-reaching methods by which to achieve each, as addressed by them in the following topics.

Risk and the regulation of people

According to the PSA, there is no benefit to the public in some professions being regulated per se – the level of risks involved and their low frequency of occurrence simply do not justify the need, and cost, of regulation that does not provide the public with any additional benefit.

In these 'lower-risk' professions, voluntary registration and accreditation work just as well, not least as it is "proportionate to risk, agile, swift and able to flex to meet changing healthcare demands and delivery models". Conversely, although statutory regulation should no longer be seen as a "badge of professional status and something to be achieved", for those professions in which risks are high, it remains appropriate.

In order to ensure consistency of analysis of professions and thereby decide which do or do not need to be fully regulated, the natural question that follows is how the level and frequency of risk is assessed. The PSA appreciates that there is currently no appropriate evaluation of risk that would allow this to happen and is currently working on a risk matrix to avoid any over-or-under regulation taking place.

The Relationship between professional and system regulation

There currently appears to be a lack of clarity as to what role the system regulators perform – are they "improvement organisations, inspectors or regulators"? This lack of clarity is inevitably part of what has contributed to the escalating "annual operating costs of regulation…of £600 million".

The PSA would be less critical of this figure "…If what was being assessed genuinely drove improvements in outcomes and quality then that might be a price worth paying". The PSA is concerned that this figure skews and possibly obstructs regulated organisations' priorities, sometimes to such an extent that the organisations are more concerned about satisfying the regulator rather the patients.

The PSA's view is that the "regulatory system should be redesigned to encourage and support people as both individuals and as teams to drive achievement and improvement". The current blame culture is of no benefit to anyone and should instead be turned into a culture of "constructive mistrust" when employees work effectively as a team.

Supporting professional conduct and behaviour

Perhaps of some concern, the PSA states that they have found "little evidence that the standards [of the regulators] have any direct influence on registrants' behaviour". Instead, it seems that standards are just one of several influences that determine a practitioner's daily conduct.

On that basis, the PSA's view is that regulation needs to become more preventative, i.e. reduce the levels of non-compliance with their standards through practitioners' conduct improving, which will necessarily in turn reduce harm to patients although, perhaps contradictorily, they also say that regulators concern is "not quality improvement but quality control".

The PSA reiterates that regulation needs to be targeted but achieved as a result of transparency of results to the public who can decide the most appropriate practitioner for themselves, rather than a regulator deliberately focusing on a particular group that may lead to accusations of discrimination. Naturally, part of a patient's decision on which practitioner to use will be their prior outcomes in similar matters and a rise of preventative regulation will reduce the discrepancies between those at the top and bottom of the 'results table'.

Possibly one of the PSA's most optimistic aims is that regulators need to create a culture in which their registrants act as "their eyes, ears and agents on the ground – taking action to prevent small problems from escalating before any regulatory involvement is required". It is unclear why the PSA thinks such action is not already ongoing and the language used would suggest some amount of peer reporting, something that could easily lead to an atmosphere of distrust.

Governance and purpose

Regulators in the future must be prepared to be increasingly flexible in the future and willing to provide the public with what outcomes they are looking to achieve on an evolving basis as the environment in which they operate changes.

In line with the PSA's aim for increased communication between all those involved in healthcare regulation, the desire is to obtain "shared positive outcomes" having had collaboration from all.

The Proposals

Emerging from the above four topics, the PSA has a list of proposals that it sees as necessary for implementation namely:

  • A shared ‘theory of regulation’ based on right-touch thinking;
  • Shared objectives for system and professional regulators, and greater clarity on respective roles and duties;
  • Transparent benchmarking to set standards;
  • A rebuilding of trust between professionals, the public and regulator;
  • A reduced scope of regulation so it focuses on what works (evidence based regulation);
  • A proper risk assessment model for who and what should be regulated put into practice through a continuum of assurance;
  • To break down boundaries between statutory professions and accredited occupations;
  • To make it easier to create new roles and occupations within a continuum of assurance;
  • A drive for efficiency and reduced cost which may lead to mergers and deregulation;
  • To place real responsibility where it lies with the people who manage and deliver care.

Reaction to the Paper

As the PSA itself acknowledges that some of its suggestions will require legislation and a willingness to deregulate, it is unsurprising that the reaction has not been universally positive. Indeed, the regulation of some professions is an area that has evolved and developed for over the past century and a drastic change will inevitably be met with resistance without any evidence being provided by the PSA in support of its proposals. The lack of feedback to the suggested proposals from those actually affected by it is surprising.

Nonetheless, similar themes to those highlighted by the PSA are occurring elsewhere in the world and, at the very least, the Paper will instigate discussion on the regulation of healthcare, something that should never be criticised.

About the Author

James is a Senior Associate in our Professional Regulatory team, he has a decade of experience in advising regulators and respondents to disciplinary proceedings.

James Danks
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