Government regulation stance fails to address human rights concerns, says union

[Editor’s note: This article was substantially edited on 28/4/16 after a review identified inaccuracies in the original]

The government’s response to a report on the way health and social care regulators operate fails to address concerns that professionals’ human rights are being undermined in some fitness to practise investigations, a union has warned.

Unison issued the warning following the government’s response to the Law Commissions’ 2014 report on reforming the law governing the regulation of health and social care professionals.

The commissions had raised concerns about reports that regulators were inappropriately imposing moral judgements on the private conduct of professionals under the guise of maintaining public confidence.

Were these reports accurate, the regulators would be failing to pay proper regard to Article 8 of the European Convention on Human Rights, which provides for the right to a private life.

The commissions said that fitness to practice proceedings should not be taken in cases of minor dishonesty and misconduct in private life unless they had some relationship with public safety or, at least, the public’s confidence in the profession concerned.

The commissions proposed that regulators, including the Health and Care Professions Council, be subject to a hierarchy of principles in which protecting public safety was their main objective followed by maintaining public confidence and proper standards of conduct and behaviour by registrants.

However, in its response, the government said there should be no hierarchy between the three objectives and they should be considered equally by regulators under the umbrella of protecting the public.

The government did raise concerns about regulators getting involved in issues not requiring fitness to practise action. However, it did not relate this to specific types of case – such as those concerning a practitioner’s private life – but to concerns that regulators were handling too high a volume of cases to take prompt action in serious cases that required action.

Unison national officer Sam Oestreicher said the recent hearing of a social worker who sent angry tweets to David Cameron was one example of a case the HCPC should never have been involved in, as it had no bearing on his fitness to practise.

Oestreicher said the government’s response was a positive step, but did not go far enough to protect registrants’ human rights. He argued the department needed to issue stronger guidance to help panels decide whether it lawful to pursue a case.

‘Not far enough’

He said: “The downside of this report is the government seems to be saying ‘we’ll leave it to the regulator to make the rules’, so effectively when it comes to the application of registrants’ human rights, there’s no criteria at all.

“There really needs to be a structured test panels can apply to ask if they are infringing on a registrant’s human rights.

“I think the government should have heeded the Law Commissions’ plea for some sort of consistency on these fundamental principles.”

Law Commission for England and Wales lawyer Tim Spencer-Lane said he was broadly happy with the government’s response, but agreed it did not clearly address the potential human rights breaches.

‘Confidence in the profession’

He said: “We recommended the principle of public protection should be of paramount importance but the government said confidence in the profession, which is generally the label given by regulators to looking into private matters, should be given equal consideration.”

The government also agreed to the recommendation that more cases are settled by agreement without having to go through a full hearing.

If a registrant has said they do not intend to practise in the future, regulators should have greater power to remove them from the register without going through the expensive and time-consuming fitness to practise process.

British Association of Social Workers policy manager Allan Norman, a social worker with a legal background, said he thought this was a  good thing.

“You wouldn’t [drag vulnerable witnesses through public hearing] in a criminal case if someone pleads guilty,” Norman said.