The Regulator's infinite multiplication: PP 39

“There’s a crack, a crack in everything. That’s how the light gets in” L Cohen.

The modern idea of regulation sets off from a dream of perfection and sets up an infinite regress. There is a regulator (you under the discipline of your practice and its theoretical apparatus), a regulator of the regulator (the HPC), and a regulator of the regulator of the regulator (CHRE). Now there is a regulator of the regulator of the regulator of the regulator. Welcome to the brand new OHPA – the Office of Health Professions Adjudicator.

The OHPA was set up by statutory instrument number 2722 (yes, SI number 2,722 in the year 2009), the Health Care and Associated Professions, using powers from Section 161(3) and (4) and paragraphs 5 and 7 of Schedule 6 to the Health and Social Care Act 2008 (a). The Chairman of this new Quango is Walter Merricks, CBE, fresh from his resignation from his last regulatory post as head of the UK Financial Ombudsman Service (FOS). Walter is qualified to regulate the regulators in the health care professions field because, a) he lives in the UK, b) he has never been prosecuted for lying, and c) he knows nothing whatsoever about any of the practices that come or may yet come within his jurisdiction. These are all stipulated requirements written not only in his job description but inscribed in the statutory instrument which I cannot find in the minutes of any recent Privy Council, but that nevertheless came to life on 1 Nov 2009.

Now Walter is looking for a chief executive officer (salary circa £150k pa) to help him deal with problematic cases referred from fitness to practice systems of the General Medical Council (these will be expanded to include the General Optical Council and in due course all other health profession regulators). “The OHPA’s creation is a key part of the Government’s wider reform programme, aimed at enhancing the confidence of practitioners and the public in professional regulation: our organisation will ensure that the decision-making process in fitness to practise cases is independent from those investigating and presenting the case.”

Because neither the chair nor his chief executive are supposed to know anything (because this is supposed to guarantee their impartiality), the qualities stipulated for the job are all about strength, rigour, and transparency, naturally.

“Early priorities will be working to decide the shape and structure of our organisation, and implementing strong governance arrangements to ensure we operate openly, transparently and with both rigour and integrity. You will need strong skills in setting vision and managing performance and sensitivity to the values of fairness in judicial decision making. In return, this role presents an unrivalled opportunity to take the lead and be both accountable and recognised for the establishment of an exemplar organisation.” Accountable to Privy Council, that is.

“The creation of OHPA follows an extensive review of the regulation of doctors by Dame Janet Smith, following the Shipman Inquiry. Its aim is to present a single, independent body to handle fitness to practise cases across a broad cross-section of healthcare professionals.” Earlier this year Dame Janet told the BBC "I really was shocked to find how totally our system of death certification is dependent upon the honesty and integrity of a single doctor," Although justice minister Bridget Prentice rejected the criticism, saying she was confident the "possibility of something as horrific as Shipman will have very, very little chance of happening again" nevertheless the regulatory juggernaut thunders along. (Could Shipman Happen Again? broadcast on BBC Radio 4 at 8pm on 12 Feb 2009).

“It will be a compact organisation, but with the capability to influence well beyond those who come into contact with doctors and opticians and who wish to raise complaints. OHPA will work closely with the professional regulatory bodies and a wide range of other stakeholders.” [quoted from the Applicant’s Information Pack which can be accessed via GatenbySanderson].

Earlier this week (13 Dec, 21.00) Lord Filkin (Labour life peer since 1999) was interviewed on BBC Radio News Channel, The Westminster Hour. His committee (the Merits of Statutory Instruments Committee) has been looking at whether secondary legislation actually has the effect it sets out to enact. “If [government] don’t know if [its] policy objectives have been achieved you are clearly in a dangerous area”. He gave several examples of ‘rather simplistic legislation’ that ‘is not a very effective way of controlling’ things, and asked ‘do they really know what’s happening in practice?’ He also drew attention to the tradition of the Lords to not normally dispute secondary legislation. “The key words are not normally, or not routinely”, he said. “It doesn’t mean Never”. When the Lords do register a dispute, it makes everyone wake up. The defeated department will probably bring the legislation back 3 weeks later, but the symbolic power of such an action cannot easily be rubbed out.



Meanwhile, at the LSE, Professor Sally Lloyd Bostock has been applying her interdisciplinary interests in psychology and law to analyse the question of risk and regulation as they unfold for the GMC. Her current area of interest is in “Regulation and Compensation Culture, in particular medical regulation by the GMC. In a recent paper “Risk-based approaches and professional regulation by the General Medical Council” (published in Risk and Public Services, LSE, 2009) Professor Bostock lays out the background and questions currently faced by GMC, which help us to understand how regulation may affect our field if things continue unchecked along their current trajectory. There follows some basic information of interest taken directly from this paper:

The GMC was originally created pursuant to the Medical Act 1858, primarily to enable the public to distinguish suitably qualified doctors from ‘quacks. It is still funded entirely by doctors’ subscriptions, and has statutory authority under the Medical Act 1983. Its duties include maintaining up-to-date registers of qualified doctors, dealing with doctors whose fitness-to-practise is in doubt, and fostering good medical practice and promoting high standards of medical education. GMC summarises its purpose as ‘protect, promote and maintain the health and safety of the community by ensuring proper standards in the practice of medicine.

…Against a background of changing culture and uncertainty about its future, the GMC has been open to new risk based approaches, but ambivalence and sometimes serious reservations are also found. “Some reservations relate to the inherently moral nature of risk-based decisions”.

Organisational complexity is growing as new bodies concerned with standards and excellence in healthcare are created, and the GMC’s remit alters as responsibilities are added, removed, or redefined, obscuring where the work of the GMC begins and ends. Changing NHS work practices, changing conceptualisation of the causes of medical error which embrace organisational factors and growing emphasis on supporting rather than sanctioning unsafe doctors, all have an impact on the definition of the GMC’s role.
Ambiguity over which risks various bodies ought to regulate gives rise to possibilities for blame transference and blame avoidance, creating further risks to the GMC.

The heavy information demands of risk-based approaches are a serious impediment to their implementation in medical regulation. Information sources related to patient safety and performance of doctors have proliferated, and information gathered for one purpose is often ill-fitted to serve other purposes.

Complaints and referrals are entangled with social processes of assigning responsibility. They are very unlikely to be representative of risks to patients, or even of patient dissatisfaction.

The CHRE came under criticism from within the medical profession for agreeing that maintenance of public confidence should be one of the criteria for determining ‘undue leniency’ of decisions referred to the High Court under s29 of the 2002 Act.

The article concludes: “The spread of risk-based approaches has changed the GMC’s environment, but it is questionable how appropriate they are to the tasks and public sector values of the GMC itself. Risk-based tools can stimulate systematic thinking and expose questions about priorities, but they can also become instruments in blaming strategies. Their use is often costly, limited by the information available, and involves inescapably normative decisions.”

Lucy Bannerman’s article in the Times newspaper 7th December, sparked a series of letters on psychotherapy regulation eg from Richard House, Andrew Samuels, Marc Seale. Each letter also spawned a string of comments in which more furious debate ensued.

Dates for your diary, 2010

Sunday 10th January, New Lacanian School Becoming an analyst: between regulation and formation. 11am til 5pm in the Bloomsbury Suite, ULU (free).

Saturday, January 23. 9.30am till 5pm in the Conway Hall, Red Lion Square, London. Confer Conference: State Regulation: The Issues. (£50) Speakers -Dr Lynne Gabriel, Chair, British Association of Counselling and Psychotherapy. Professor Darian Leader,. Julian Lousada, Chair, BPC. Professor Andrew Samuels, Chair, UKCP. Marc Seale, Chief Executive and Registrar, HPC. Professor Diana Waller, Chair, Counsellors and Psychotherapists PLG of the HPC. Dr Michael Fischer, Research Fellow in Healthcare Management, Kings College London

March 16th, 6.30pm - 9.30pm Brighton. Sussex Counselling The Big Debate, at the Brighthelm Centre, with Diane Waller (chair of HPC PLG for C&P), David Pink (CEO of UKCP), Janet Low, HPC reps, etc. contact Sussex Conselling

Judicial Review of the HPC (see 19th October post hpcwatchdog.blogspot.com).
To contribute to this initiative you can transfer funds to JR Fighting Fund, Lloyds Bank Sort Code 30-00-04, Account 02101964, or send cheques made out to JR Fighting Fund to Pine Cottage, Thornden Wood Road, Herne Bay, Kent CT6 7NZ.

Academics against bean counters 520
Against State Reg 2851 Against Over Reg 1719

Special thanks this week go to Andreas Ginkell, Denis Postle, Richard House and Roger Litten for information and links to material that is reported here. All feedback welcome.

Merry Xmas, and Happy New Year everyone. Reports resume on 8th January, 2010.