Fitness to Practise Update Series: The Regulated Professions (Health and Social Care) (Amendment) Act 2020 | Fieldfisher
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Fitness to Practise Update Series: The Regulated Professions (Health and Social Care) (Amendment) Act 2020

Zoe Richardson
05/11/2021

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Key changes for Fitness to Practise regimes


The Regulated Professions (Health and Social Care) (Amendment) Act 2020 ("2020 Act") was enacted in October 2020. It introduces various amendments to existing legislation governing the regulation of professionals practising in the healthcare sphere, including doctors, nurses, pharmacists, dentists and other health and social care professionals. Provisions of the 2020 Act have commenced in different stages and while some aspects of the Act have not yet been commenced, significant portions are now effective.

We explore below the changes affecting regulators, and the professionals they regulate, in the area of fitness to practise.

Who does the Act affect?

The regulatory bodies (and applicable legislation) to which the Act applies are as follows:
 
  • Medical Council – Medical Practitioners Act 2007
  • PSI – Pharmacy Act 2007
  • Dental Council – Dentists Act 1985
  • CORU – Health and Social Care Professionals Act 2005
  • NMBI – Nurses and Midwives Act 2011
What key changes have been made to fitness to practise?
 
  1. Additional Grounds of Complaint
 
  1. The 2020 Act introduces a new ground of complaint applicable to all five regulators.  It provides for complaints to be made where a registrant has been the subject of:
 
  • A prohibition against them providing one or more kind of health or social care in the State or another State; or
  • A restriction on their ability to provide one or more kind of health or social care in the State or another State. A restriction includes the attachment of conditions to their registration.
 
Commenced: CORU and PSI
Not yet commenced: Medical Council, NMBI and Dental Council
 
  1. The 2020 Act introduces new grounds of complaint applicable to the PSI only.  The new grounds relate to breaches of specific pieces of legislation:
 
  • For Pharmacists: A failure to comply with a provision of an Act referred to in S.7 of the Pharmacy Act 2007, or any Regulations made under these Acts. The Acts specified are the Poisons Acts, Animal Remedies Acts, Irish Medicines Board Acts, Misuse of Drugs Acts, and Health (Pricing and Supply of Medical Goods) Act 2013. Failure to comply with the European Communities (Animal Remedies) (No. 2) Regulations 2007 (S.I. No. 786 of 2007) is also now a specific ground for complaint.
  • For Pharmacies: A failure of a pharmacy owner, in their capacity as a pharmacy owner, to comply with a provision of an Act referred to in S.7 of the Act, as listed above, or any Regulations made under those Acts. Failure by a pharmacy owner to comply with the European Communities (Animal Remedies) (No. 2) Regulations 2007 (S.I. No. 786 of 2007) is also now a specific ground for complaint.
Commenced: 13 February 2021
 
  1. Investigation of Complaints
The 2020 Act provides for a change to the way in which complaints are investigated by the Medical Council and NMBI only at a preliminary stage. The Act significantly enhances the investigatory powers available at the preliminary stage. Key changes are as follows:
 
  • The CEO is empowered to determine whether a complaint is made in bad faith, is frivolous or is vexatious. If the CEO decides a complaint is such, it must notify the complainant of this decision and provide reasons for it;
  • The role of Authorised Officer (AO) is created;
  • The CEO is empowered to appoint an AO to investigate a complaint and prepare a report;
  • AO's can require a complainant to verify matters contained in a complaint, including on Affidavit;
  • An AO can require both complainant and registrant to provide further information and a complainant/registrant must provide the information required;
  • If a complainant declines to provide further information sought, the CEO can refuse to progress the complaint further;
  • On receipt of the report of an AO, the CEO provides it to the PPC for consideration. The PPC retains the function of determining whether there is sufficient cause to refer a complaint for Inquiry;
  • The PPC can request the CEO to have further investigations conducted, and the CEO must do so.
Commenced: NMBI – August 2021
Not yet commenced: Medical Council
 
  1. Extension of Production Powers
Most Committees of Inquiry of the relevant regulatory bodies have powers to compel production of records and documents. However, to date preliminary screening committees have not had extensive powers in this area. The 2020 Act extends this statutory power to compel production of records, through the issuance of a Summons, to the PPC of the Medical Council, NMBI and CORU.

Failure to comply with a Summons issued by the PPC becomes an offence which is prosecutable. Compliance can also be enforced by way of application to the High Court.

Commenced: CORU and NMBI
Not yet commenced: Medical Council
 
  1. Early Disposal: Undertakings and Consents
In one of the key changes brought about by the 2020 Act, it introduces a mechanism for the early disposal of complaints by the NMBI and Medical Council. The PPC is empowered to request certain undertakings from registrants, which if provided result in the conclusion of the complaint process. The PPC can request the following undertakings, which are in line with the types of undertakings that to date only Committees of Inquiry have been statutorily empowered to request:
 
  • Undertaking not to repeat conduct the subject of the complaint;
  • Undertaking to be referred to professional competence scheme and to undertake improvements of competence/performance (Medical Council) / undertaking to demonstrate relevant competencies to the satisfaction of the Board (NMBI);
  • Consent to undergo medical treatment; or
  • Consent to be admonished or censured.
Commenced: NMBI
Not yet commenced: Medical Council
 
  1. Appeal of Minor Sanctions
Prior to the 2020 Act, registrants had an entitlement to appeal to the High Court against the imposition of sanctions imposed on them, with the exception of advice, admonishment or censure. The 2020 Act introduces a right of appeal to the High Court against the imposition of these "minor sanctions".  The timeframes within which appeals may be brought differ slightly across the regulators.

This amendment is introduced for all five regulators. The status quo remains in terms of confirmation applications and there is no requirement for any of the regulatory bodies to apply to the High Court to confirm a decision to advise, admonish or censure a registrant. Such a sanction now takes effect automatically on the expiry of the statutory appeal period.

Commenced: PSI, CORU, NMBI and Dental Council
Not yet commenced: Medical Council
 
  1. Publication
This amendment applies to all five regulators:
 
  • The 2020 Act creates further transparency in terms of the outcome of fitness to practise Inquiries. It makes public notice of sanction mandatory, except in cases of censure, advice or admonishment, in which case public notice must be given where the sanctioning body considers it to be in the public interest to do so.
  • Whilst CORU, the Medical Council and the NMBI already have a power to publish the transcript of an Inquiry and the report of an Inquiry Committee, to date the PSI and Dental Council have not held an express statutory power to do so.  In a new development for the PSI and Dental Council, the 2020 Act provides that they must publish the transcript and/or report of an Inquiry, where it is in the public interest to do so.
  • Prior to the 2020 Act, Medical Council, NMBI and CORU were required to consult with the Inquiry Committee prior to publishing a transcript or Inquiry report. This consultation requirement has been dispensed with.
  • Finally, all acts have been amended to include a requirement that nothing can be published that is inconsistent with a decision of the High Court, arising from its functions under the appeal or confirmation sections of the legislation.
Commenced: PSI, CORU, NMBI and Dental Council
Not yet commenced: Medical Council
 
  1. Annual Declarations
A new introduction for all five regulators is the requirement of registrants to make annual declarations disclosing the existence of any relevant proceedings pending or in progress.

"Relevant proceedings" are any disciplinary or judicial proceedings in the State or elsewhere, which may result in:
 
  1. a prohibition or restriction being placed on the registrants ability to provide health or social care; or
  2. a conviction for an offence triable on indictment.
On review of a declaration, the regulator is entitled to request further information and the registrant is obliged to comply with such a request. A failure to comply grounds a mandatory complaint by the regulator.

Within 3 months of the "final determination" of any relevant proceedings, registrants must submit a declaration providing details of any sanctions imposed.

Not yet commenced for any regulator.
 
  1. Power to Request Information from other Regulatory Bodies
In another enhancement of the investigatory powers of regulators brought about by the 2020 Act, the CEO/Registrar of each regulatory body will be permitted to request the following information:
 
  • From An Garda Síochána: Information concerning the criminal record of a registrant (prior convictions with the exception of spent convictions). An Garda Síochána is required to comply, subject to the Data Protection Act;
  • From a Court Clerk or Court Registrar: A certificate of conviction or a judgment or a Court Order. The relevant Clerk or Registrar is required to provide the information requested.
The power to request information applies to complaints "heard, being heard or to be heard", and therefore appears to apply once a complaint has been made. 

While it will apply to all five regulators, it has not yet commenced for any regulator.

Conclusion

Careful analysis of the legislation is required to determine which amendments apply to each regulator, which amendments have been commenced and which amendments are applicable to complaints. The amendments applicable to the NMBI are to apply only to complaints received after 01 August 2021, with complaints received before that date to be dealt with under the "unamended" Nurses and Midwives Act 2011. A similar provision has been inserted for the Medical Council. However, for CORU, PSI and the Dental Council, there is no such stipulation.

The 2020 Act introduces some of the most wide ranging amendments to fitness to practise regimes. Some of the amendments are long anticipated, such as the appeal of minor sanctions and the introduction of early undertakings.

However, there remains a lack of consistency and uniformity across the various pieces of legislation governing healthcare regulators, with subtle differences still apparent. Some of the key amendments introduced by the 2020 Act only apply to certain regulators, for example the introduction of Authorised Officer investigations at screening stage and the power to accept undertakings by the PPC. Nonetheless, the 2020 Act introduces some far-reaching changes in the context of professional regulation and its application and interpretation is likely to be keenly observed.

A copy of the Act can be accessed here.

Written by Zoe Richardson and Dena Keane.

Areas of Expertise

Public and Regulatory