The question of how to regulate the adult social care workforce in England has been high on the government’s agenda for some time now, gaining momentum in the wake of the Winterbourne View abuse scandal. Statutory regulation, which entails establishing mandatory national standards, managing fitness to practise cases and protecting titles, has all but been ruled out because of the size of the workforce (estimated at 1.56m) and the associated costs.
In the command paper, Enabling excellence: Autonomy and accountability for healthcare workers, social workers and social care workers, published in February 2011, the government said it would explore scope for the new social work regulator in England, the Health and Care Professions Council (HCPC), to establish a voluntary register of social care workers by 2013. Support for this approach was reiterated in the recent Care and Support White Paper.
When the Health and Social Care Act 2012 came into force on 27 March, it gave the HCPC discretionary powers to establish voluntary registers for various parts of the workforce. But it has emerged that the HCPC does not agree with the government’s stance on regulating adult social care workers. In fact, at an HCPC council meeting on 18 September, members agreed that the regulator would not establish a voluntary register for this group of professionals. Instead, the HCPC has decided to put it to the government that a “negative register” – which is a bit like a naughty list for social care workers – would have more merit.
Rejecting the government’s position
The HCPC’s council is concerned about the “feasibility and desirability” of a voluntary register for care workers for a variety of reasons. For a start, there would no legal compulsion to join the register. If a complaint was made about a social care worker not on the register, the HCPC wouldn’t be able to do anything about it. It would not have legal powers to demand the disclosure of information (which could hinder investigations and tribunals) and neither would it be able to impose a single nationwide set of education and training standards on the workforce.
A negative register, on the other hand, could provide proportionate regulation without the cost and drawbacks of a voluntary register, according to the HCPC. It would work as follows: All service providers registered by the CQC must already have a registered manager responsible for the day-to-day supervision of each regulated activity the provider carries out, e.g. nursing care, accommodation of people who require treatment for substance misuse, and so on (there are 15 in total). It is estimated that there are around 15,000 CQC registered managers in England. The HCPC proposes setting up a statutory register for this group of professionals, pointing out that they directly influence the standards, culture and behaviour of their employees.
The remainder of the workforce would be regulated through a negative register. The concept is similar in principle to the suitability scheme for social work students and based loosely on the “negative licensing” approach taken in New South Wales, Australia. A national code of conduct would be applied to the adult social care workforce and the HCPC would consider serious complaints made about individual professionals. Any decisions to uphold a complaint would be made public, as would the resulting sanction. The costs of this approach would be “proportionately lower” than a voluntary register and individuals would not be required to pay a fee. The HCPC also argues that a negative register would offer higher levels of public protection; presumably because the regulator could investigate complaints made about any care worker, not just those voluntarily registered.
A negative register would differ from the ISA’s vetting and barring scheme because it would be based on a code of conduct and the HCPC could impose a range of sanctions, including suspension, conditions and warnings (the ISA has a higher threshold, only deciding whether to bar someone from working with vulnerable children and adults or not). More work is needed to explore how the two would tie together.
It is worth stressing at this point that the HCPC’s proposal is in the very early stages. The regulator’s council seems to be in broad support of a negative register, but nobody yet knows how the government will respond. The HCPC is now working on a policy statement to present to its council members in October. But, even if the government thinks this satisfies its policy objectives, more work will be required to establish costs and a formal consultation will have to be carried out.