Changes in the oversight of various professions are coming, writes SIMON MILLS
HISTORICALLY, PROFESSIONS were strongly “self-regulated” by professional bodies with little non-professional representation and with limited transparency.
That arrangement is, however, growing progressively obsolete. Almost all of the “traditional” professions have seen their governing legislation substantially refurbished (at the time of writing, a new Nurses and Midwives Act is imminent).
There has also been a marked increase in the number of professions newly coming under statutory regulation. The Building Control Act 2007 will regulate architects, quantity surveyors and building surveyors, while multiple professions will ultimately be governed by the Health and Social Care Professionals Act 2005. Under this latter Act, at least 12 professions (including social work and physiotherapy) will come to be regulated, although only the regulation of social workers has been commenced to date.
Although there is some diversity in the way different professions are regulated by statute, the overlap is substantial. In each case, professionals are required to be registered with their relevant professional body in order to be allowed to practise their profession. Where a complaint is made to the regulatory body, an investigation will take place to determine whether the professional has a case to answer. Where there is a case to answer, an inquiry will be held and, where the registered professional is found guilty by an inquiry, a sanction of some form must (or, under certain statutes, may) be imposed. With reform of existing legislation and in newer legislation, the overall trend has been for such inquiries to be held in public, but there are still exceptions to this norm.
Where a serious sanction is imposed by a regulatory body, it must be confirmed by the High Court. Broadly stated (there are, again, some exceptions), a sanction is a “serious” one where it affects the ability of the registered professional to practise: erasure from the register, suspension from the register and the attachment of conditions to future practice are the most common examples. Save for minor sanctions, registered professionals have a right of appeal to the High Court against a decision by a regulatory authority to impose a sanction.
Aside from the fact of regulatory legislation, with its greater transparency and emphasis on non-professional representation, there also remains the question of whether legislation is in fact doing the job for which it was enacted.
One example is the Teaching Council Act 2001. In spite of the Teaching Council having come into being in 2004, the sections of the Act dealing with complaints and inquiries concerning the conduct of registered teachers have not been commenced.
Accordingly, while teachers are required to be registered, there is no mechanism by which a complaint can be dealt with or by which a registered teacher can be removed from the register for being unfit to teach.
The point of statutory regulation of professions is to protect the public. Recent reforms can be said to have enhanced this aim in a number of ways. The first is by increasing the number of grounds on which complaints can be made: while traditionally complaints would only be upheld where a registered practitioner was guilty of professional misconduct or unfit to practise by reason of illness or addiction, now a practitioner may – depending on the relevant legislation – face an inquiry for acts or omissions falling short of misconduct (typically termed “poor professional performance”), or for failing to comply with rules made by the regulatory authority.
However, the question might validly be asked whether increasing the range of complaints that may be made dilutes the attention that a regulator can give to the serious acts or omissions that should arguably be its primary focus.
The second enhancement is that the public is (with some exceptions) more strongly represented on the regulatory bodies themselves and on the committees that investigate and inquire into the conduct of registered professionals. Last among the significant reforms is the greater emphasis on transparency in the form of public inquiries. All of these may tend to ensure that professions are not only more accountably regulated, but that they are seen to be more accountably regulated.
By the standards of other nations, Ireland is comparatively restricted in the number of professions regulated. Even confining one’s analysis to healthcare and its related professions, in Ontario 23 health professions are regulated, while a further four professions are seeking regulation. In the United Kingdom, 25 healthcare professions are regulated, with a further 11 groups of health professionals having been recommended for regulation, while 16 other professions have made representations seeking recognition with a view to regulation.
In Ireland, even allowing for full implementation of the Health and Social Care Professionals Act, comparatively few professions are regulated by statute.
If international trends are followed, it seems probable that future directions in Irish professional regulation will include an increase in the number of regulated professions. It will also mean the growth of so-called “super-regulators” with oversight of multiple related regulated professions, and with the power to regulate the existing regulators. For example, in the United Kingdom, the Commission for Healthcare Regulatory Excellence is responsible for overseeing nine healthcare regulators.
Dr Simon Mills is a barrister and one of the authors of Disciplinary Procedures in the Statutory Professions (by S Mills with A Ryan, E Burke and JP McDowell, Bloomsbury Professional, 2011). The views contained in this article are Simon Mills’s only.