Perspectives: Professional regulation: public protection or professional burden?
Journal of Research in Nursing 2016, Vol. 21(8) 651–655 ! The Author(s) 2016 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1744987116678961 jrn.sagepub.com
Elaine Maxwell Associate Professor in Leadership, School of Health and Social Care, London South Bank University, UK
A 2015 report by the Professional Standards Authority (which oversees each of the nine statutory regulators of healthcare professionals in the United Kingdom) proposes a continuum of actions dependent on the level of risk to the public (Professional Standards Authority, 2015). They propose that as the level of assessed risk increases, the regulatory force required to manage that risk also increases, from employer controls (requirements that employers might put in place to provide assurance of minimum standards) to credentialing (a method of validating the identity and legitimacy of external employees), moving to voluntary registration on accredited registers operated by the Professional Standards Authority, and finally to statutory registration and licensing where there is a legal requirement for registration. Statutory regulation of healthcare practitioners has been in place in the UK for almost two centuries (starting with medical practitioners in 1858, with midwives in 1902 and nurses in 1919) and with the stated aim of protecting the public. But does the current system achieve this, and at what cost? The context of professional nursing practice has changed dramatically since 1919 and the public expectations of nurses have risen, leading to increasing numbers of fitness to practise investigations, the volume of which means they can take months or years to be completed, leaving the public and practitioners deeply unsatisfied. A recent event at London South Bank University saw Jackie Smith, the Chief Executive of the Nursing and Midwifery Council (NMC), debate the challenges of regulation with Dr Peter Carter, past Chief Executive of the Royal College of Nursing. Jackie Smith opened by noting that current legalisation necessarily focuses the regulators on fitness to practice and this is the lens through which regulation is viewed, but she went on to say that this is only part of the overall picture. In fact, during 2014–2015 only 0.7% of the 686,782 nurses and midwives on the register were referred for fitness to practise procedures (NMC, 2015) but this activity used up around half of the registration fees. She also observed that public expectations of nurses and midwives have increased over time, and that whilst referrals from employers have remained constant, referrals from the public are increasing Corresponding author: Dr Elaine Maxwell, Associate Professor in Leadership, School of Health and Social Care, London South Bank University, 103 Borough Road, London SE1 0AA, UK. Email:
[email protected], Twitter: @maxwele2
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with 29% of all referrals in 2014–2015 made by the public rather than employers (a 47% increase from 2013–2014). The threshold for opening a fitness to practise investigation is set by parliamentary legislation and is relatively low, only requiring an allegation that might reasonably be able to be proved; it does not require that a level of proof be provided at the outset. Peter Carter noted that 53% of the fitness to practise processes that were completed in 2013–2014 were found to have no case to answer. The disproportionate focus on fitness to practise, and the low bar for referrals, create an expensive and adversarial process that can be traumatic for patients and families involved, for witnesses and for practitioners under investigation, and both speakers acknowledged the need to create a more compassionate and timely process for all those involved. Jackie Smith suggested that as well as holding the tiny minority to account, the regulator should be a force for development and improvement and asserted that the introduction of periodic revalidation is a major move away from blame towards prospective support for practitioners. This approach certainly gels with work in patient safety circles which supports a move away from a ‘closing the gate after the horse has bolted’ mentality of managing safety reactively based on historical performance, to creating capacity to prevent failure in the first place (Hollnagel, 2013). A move to development and improvement would involve the regulator in setting professional standards, not just at the point of registration but for all areas and levels of practice. There has long been pressure in the UK for the regulator to recognise higher-level practice, but this has, to date, been impossible within current legislation (Waller, 1998). Peter Carter agreed that regulation is essential for holding individuals to account and ensuring that they discharge their professional responsibilities in a manner that users of their services would expect, but he also emphasised that regulation is not a panacea that prevents organisational or system-wide failures. He contrasted the way each of the professional regulators responds to practitioners involved in, for instance, the same clinical incident and suggested that the General Medical Council (GMC) respond quite differently. Jackie Smith confirmed that the GMC’s legislative framework is different, meaning that their approach can be different. She agreed that there should be closer alignment between regulators across the UK to improve patient safety, but noted that the current NMC legalisation means that fitness to practise is very narrowly defined in that it focuses on determining whether (or not) a nurse or midwife’s personal practice is impaired. This approach means that the NMC is not empowered to investigate and resolve the entire circumstances around often complicated events involving multiple agencies even if it wished to do so. Peter Carter then raised the issue that as well as differences between the responses of the professional regulators, there is a distinct lack of accountability from healthcare organisations. He cited the recent example of Pauline Cafferkey, who was referred to the NMC by Public Health England (PHE) following her return to the UK after nursing people with Ebola in Sierra Leone. PHE alleged that she allowed the wrong temperature to be recorded while she was in the Ebola screening unit at Heathrow in December 2014. She was diagnosed with Ebola and admitted to hospital the following day. Later PHE claimed her failure to disclose her symptoms to their staff at Heathrow airport put the public at risk. When the case was finally concluded earlier this year, the panel found that she was already suffering from the early stages of Ebola and therefore her judgement had been impaired at the time because of her illness. For this reason, it was
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decided that she could not be found guilty of misconduct when an inaccurate temperature was recorded at the PHE screening unit. Concerns remain, however, about the PHE’s ‘chaotic’ system for screening returning healthcare professionals (Cramb, 2016). Why, Peter Carter asked, has PHE not been held to account, both for failing in their duty to provide reliable screening processes to protect the public and also for adding to Pauline Cafferkey’s distress by making what turned out to be an unwarranted referral rather than supporting her through her illness? Drawing on other industries’ experiences, most notably in recent times the banking sector where regulation failed to prevent the worldwide financial collapse, Peter Carter asked the audience to consider the role of professional regulation within the wider systems needed to safeguard the public. He suggested that accountability of individuals needs to be balanced by accountability of their employers who create the conditions that permit and promote best practice. Whilst this seems self-evidently necessary, the regulation of healthcare providers in the NHS is complex, with different bodies in each of the four countries of the UK and a lack of clarity on the division of responsibilities. In England regulation of organisations is currently split between the Care Quality Commission (successor to the scheme set up following the 2001 report of the public inquiry into failures in paediatric cardiac surgery services in Bristol) and NHS Improvement, with some involvement of clinical commissioning groups and NHS England. Within current arrangements, determining who should be included in an investigation and conducting it in a timely and cost-effective manner would therefore be a logistical nightmare. The Professional Standards Authority issued a discussion paper in October 2016, Regulation Rethought (Professional Standards Authority, 2016), that sets out their proposals for a transformation of the regulation of health and care professionals. They concur that the whole regulatory system needs reform, including system regulators such as the Care Quality Commission, if regulation is going to be effective for patients and professionals alike. They propose that the professional regulators collaborate to establish a shared, public register for statutorily regulated professions, which in due course is extended to encompass accredited registers and other currently unregistered occupations, subject to proper risk profiling. It is suggested that this would make it easier for the public and employers to access and understand professional regulation. This shared register would be focused on three key principles; protecting patients and reducing harms, promoting professional standards and securing public trust in professionals. Jackie Smith questioned whether there was any evidence that a shared register would bring any benefits, given the upheaval that would be involved in moving to create it. The NMC is the largest professional regulator in the world, and as such, dwarfs all the other regulators in the UK. Creating a shared register would therefore be challenging due to different practices and fee structures. Some of the audience felt that creating a shared register would compromise the setting of uni-professional standards and therefore the NMC’s development and improvement role. The audience was reminded that the Professional Standards Authority has been asked to consider the regulation of Nursing Associates (a new, non-graduate level role proposed by Health Education England) and this brought about robust discussion about whether this was needed, and if so, which of the UK regulators should undertake it. Some of the audience suggested that using the Professional Standards Authority risk profiling approach would suggest a voluntary register only. Despite the obvious complexity of regulating this new
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group of healthcare workers, Peter Carter was in support of statutory regulation given the large numbers of healthcare assistants working in care homes and social care settings with very little supervision. Some of the audience suggested that as the largest regulator, the NMC should focus on its current registrants and that Nursing Associates are a low-risk distraction from the key issue of creating and maintaining excellence in the current autonomous nursing and midwifery workforce. Prior to the commencement of the debate, the audience were polled electronically on their agreement with six statements. They were then polled again at the end of the debate. The audience started by agreeing that regulation is about holding practitioners to account when they fall short of standards expected by the public (81% agreed, 4% were neutral and 15% disagreed) and, although there was a slight shift away (post-debate 80% agreed and 20% disagreed with none neutral), the mood appeared to be more that this should be added to rather than altered. Initially 89% agreed that regulation should focus on supporting practitioners through learning rather than apportioning blame, moving to 91% agreeing (with 82% strongly agreeing as opposed to 68% strongly agreeing pre-debate). The biggest change of opinion was around the purpose of and therefore the legislation around regulation. Pre-debate 66% agreed that the current regulatory legislation makes for an expensive and adversarial process, with 19% neutral on the question. After the debate 92% agreed (with 85% strongly agreeing compared with 45% before the debate) and this seemed to be linked to an increasing agreement that the regulator should set professional standards (up from 65% pre-debate to 75% post-debate). This refocusing on professional standards also correlated to a change in views about a single regulator for all healthcare professions, which moved from 29% strongly supporting it and 34% strongly disagreeing before the debate to 17% strongly supporting and 60% strongly disagreeing after the debate. The debate also covered the relationship between organisational and individual accountability. Pre-debate, 85% agreed that the emphasis of regulation falls too much on the conduct of individual registrants and that there is not enough attention on the employers, and this increased to 91% after the debate. It appears that regulation of nurses and midwives in the UK is at a crossroads. There is strong support for a move from looking at a practitioner’s individual practice in isolation to considering the context in which they practice, providing support for continuous development and helping individuals adjust to changing circumstances. There is also strong support for an integrated, holistic approach to safeguarding the public by closely working with the regulators or other professions and the regulation of employers. At this debate, however, the audience felt it was important to retain the unique and distinctive aspects of nursing and midwifery, and that would not be well served by a single healthcare professions’ register. References Cramb A (2016) Ebola nurse Pauline Cafferkey cleared of dishonesty, but accused of misconduct for ‘hiding true temperature’. The Daily Telegraph 13 September 2016. Available at: http://www.telegraph.co.uk/news/2016/09/13/
ebola-nurse-pauline-cafferkey-faces-disciplinary-hearing/ (accessed October 2016). Hollnagel E (2013) A tale of two safeties. Nuclear Safety and Simulation 4(1): 1–9.
Maxwell Nursing and Midwifery Council (2015) Annual Fitness to Practise Report 2014/15. London: HMSO. Professional Standards Authority (2015) Rethinking Regulation. Available at: http://www.professionalstandards. org.uk/publications/detail/rethinking-regulation-2015 (accessed October 2016).
655 Professional Standards Authority (2016) Regulation Rethought. Available at: http://www.professionalstandards.org.uk/docs/ default-source/publications/thought-paper/regulationrethought.pdf?sfvrsn¼10 (accessed October 2016). Waller S (1998) Clarifying the UKCC’s position in relation to higher level practice. British Journal of Nursing 7(16): 960–964.
Elaine Maxwell, PhD, RN is Associate Professor at London South Bank University and a Non-Executive Director at Basildon and Thurrock University Hospitals NHS Trust. She has previously worked as an Executive Nurse in provider organisations.
