Scottish Government

REGULATION OF HEALTH CARE SUPPORT STAFF AND SOCIAL CARE SUPPORT STAFF IN SCOTLAND

Introduction

What do we mean by regulation?

1. Regulation exists to ensure standards of practice and to protect the public as far as possible against the risk of poor practice. It works by:

• setting agreed standards of practice and competence
• registering those who are competent to practice,
• restricting the use of specified titles (if statutory) to those who are registered and
• applying sanctions such as removing from the register anyone who fails to meet these standards.

Why are we considering this now?

2. The Department of Health in England is currently consulting about the regulation of health care support staff in England and Wales. The consultation paper can be found at www.dh.gov.uk/consultations/fs/en.

3. Whilst the regulation of health professionals is a reserved matter, the regulation of currently unregulated staff is a matter for the devolved administrations in Scotland and in Northern Ireland (when devolved power is restored). Different patterns of service delivery may impact on changing roles within the workforce in each country of the UK. However, all 4 countries recognise the desirability of adopting a common approach to regulation in order to ensure that staff moving within the UK are not subject to different regulatory requirements

4. In Scotland, we have concluded that the way in which we are responding to changing health and social care requires consideration of the regulatory requirements for support staff in both health and social care.

5. This consultation paper therefore sets out proposals for extending regulation to a wider range of health and social care staff, seeks views on them and invites further debate. The document explains:

• The reasons for extending regulation
• The groups of staff who might be covered by regulation
• How regulation might be undertaken
• A timetable for action.

The reasons for extending regulation

Who is currently regulated?

6. Most health care professional staff are already regulated. These include doctors, dentists, pharmacists, nurses, midwives, allied health professionals, some healthcare scientists, osteopaths, and chiropractors. Where professional staff including nurses and allied health professionals are taking on extended roles, these will be governed by the Nursing and Midwifery Council's Code of Professional Conduct and Scope of Professional Practice and the Health Professions Council's Code of Professional Conduct.

7. Social care professionals are in the process of being regulated by the Scottish Social Services Council. Achieving this new requirement is likely to take until 2009/10.

8. Health care professionals using their professional qualification for a social care role will continue to register with their existing health care regulator: the Nursing and Midwifery Council for nurses; the Health Professions Council for allied health professionals including occupational therapists. Health care professionals who work in other social care roles may have the choice of registering with the Scottish Social Services Council, depending on where they see their future career, unless they are employed in a role which requires profession-specific registration.

Aspirant Healthcare Professions

9. Significant progress has been made towards extending statutory regulation to more professions who aspire to regulation. The current position is set out below:

• Operating Department Practitioners and Applied Psychologists. Both applied for regulation by the Health Professions Council in 2003
• Healthcare Scientists who have professional qualifications including Clinical Perfusionists, Clinical Physiologists. These groups may begin to be ready for regulation by 2005 - if standards of training and practice have been sufficiently well developed by then.
• Psychotherapists and other practitioners of "Talking Therapies". The Department of Health is continuing talks with the organisations concerned - to try to agree a way forward for regulating these groups but has accepted the need for regulation.

Why should regulation be extended?

10. To protect the public: The Scottish Executive is committed to providing an effective system for the regulation of all health and social care staff whose work has a direct impact on patient and service users.

11. To capture the changing roles of unregulated support staff: Unregulated support staff such as health care support staff and care workers are extending their skills so that they can undertake work previously done by registered professionals. To support this, the Scottish Executive has been developing initiatives such as wider access to flexible training, and changing the way in which staff work with new roles designed around patient and user centred services. In health and social care, increased emphasis is being placed on developing skills and competencies; emphasising the importance of lifelong learning, career development, and professional development.

12. These developments mean that a wider range of staff, with a diversity of qualification of qualifications and skills, are providing hands-on care. This has real implications for current regulatory arrangements. In order to ensure public protection, it is no longer adequate for regulation to be limited to the current range of professional groups. Arrangements need to be put in place to regulate the practice of all staff who provide direct care to patients and service users.

13. To close an existing loophole: Under the current regulatory framework, staff who have been removed or suspended from an existing register could return to work in a setting as a support worker. Depending on the reason for their removal from a professional register they could continue to put patients or service users at risk. Regulation of all health and social care support workers whose work has a direct impact on patient and service users, irrespective of which sector they work in would address this.

14. To meet the needs of the Joint Future agenda: Staff are increasingly working as part of wider health and social care teams to provide quick and effective care services. This development of the Joint Future agenda means that the proposed regulation of health and social care support staff needs to accommodate workers in the NHS, local authorities, and the voluntary and private sector in Scotland, and provide flexibility across professional, sector, agency and cross border boundaries. The increasing flexibility of the workforce means it is important to ensure that the regulatory system supports, rather than hinders, the changing nature of care.

The groups of staff who might be covered by this regulation

Who should be regulated?

15. We believe it is important that the existing regulatory system should be extended further. Some staff groups whom we believe should be subject to regulation in future include:

• Health care assistants, assistant practitioners and those undertaking similar roles across a wide range of care settings
• Allied Health Professionals assistants
• Healthcare Scientist Workforce apart from the aspirant professions in paragraph 9
• Social care support staff
• Pathology Assistant Practitioners - who carry out screening and testing of patient body samples to aid diagnosis and treatment - for example, medical laboratory assistants who undertake pathology related tasks such as simple blood tests and specimen preparation - do not have direct contact with patients and service user, their work does have significant impact on treatment and care.

How can we regulate staff who move or work across traditional boundaries?

16. Regulation has to be relevant to the range of ways in which care is provided. It needs to support the development of flexible, multi-skilled staff working across traditional professional boundaries and across care settings. Flexibility to move across traditional professional boundaries and agency boundaries must therefore be addressed.

17. It will be important to devise a regulatory framework which does not lock staff into existing professional groupings but enables them to develop new career pathways. This framework must also support work in joint health and social care multidisciplinary and multi-agency teams that potentially combine the roles of support staff working to different professions and in different agencies. For example, Rehabilitation/Therapy Assistants who perform a range of therapeutic and nursing tasks [e.g. occupational therapists] in a multi-disciplinary environment (and sometimes multi-agency environment) and could, therefore, not easily register through a single professional stream.

Q1 Should regulatory requirements be extended to the groups of staff identified above? If not, which groups of staff should be included and on what criteria?

18. There are other support staff who come into contact with members of the public work in areas such as domestic, portering, administration and clerical work which does not involve direct patient or service user care provision. Deficiencies in performance by these groups of staff may be more appropriately managed locally by the employer through local standards of conduct and performance, training and, in extreme cases, disciplinary procedures. Since regulation does impose cost and creates some barrier to employment for staff and some burden on employers, we do not believe these staff should be included within formal regulatory arrangements, and consider that we should look to employers own arrangements for tackling poor performance.

How can we ensure quality?

19. It is essential that all staff groups who have direct contact with patients and service users provide high quality care. Quality of care will be strengthened if arrangements are put in place that require health and social care staff to meet standards of practice, conduct and training that can deal with those who do not meet the standards. It will therefore be an important element of the new regulatory arrangements to establish clear criteria, in terms of qualifications or experience for admission to the register. National occupational standards which form the basis of health and social care vocational qualifications already exist. Quality of care will be strengthened if these additional groups of staff are required to meet specified training and practice standards; to register with an appropriate regulatory body; and to be subject to action if their actions or behaviour fall short of accepted standards.

20. Introducing regulation at an earlier stage in the career pathway will make it easier for support staff to move on to professional roles later if they wish. Use of standards will also give professional staff the confidence to delegate more skilled work to assistants and support staff, which can allow them to develop their own role further. A decision about the criteria for entry to the Register will be required following the outcome of this consultation.

Q2 Should assistants and support staff be accountable for their own practice?

Q3 Should assistants and support staff set their own standards OR should those with overall responsibility for the work of these staff share in, or take, the lead in setting these standards?

Q4 How can multi-disciplinary and multi-agency issues best be addressed? Should the regulators set common standards and/or recognise each others so that workers can move between different health and social care settings without the need for multiple registration? OR could all assistants and support staff be regulated as a single group within a single framework including some shared standards and some discipline-specific standards?

How regulation might be undertaken

What do we propose?

21. As indicated above, we believe that regulatory arrangements should be extended to those staff who have a direct impact on patients and service users and who are not currently covered by existing regulatory arrangements. "Direct impact" implies face-to-face provision of prevention, treatment and care sometimes involving the application of clinical judgement or risk assessment, and may also cover provision of technical analysis and scientific support involving patients' body samples.

What form should regulation take?

22. There is a range of options for regulation:

statutory self-regulation;
statutory shared regulation;
voluntary regulation led by staff organisations: and
employer-led regulation linked to employment contracts.

23. We propose that the new groups to be regulated, subject to the outcome of this consultation, should be subject to statutory regulation. Statutory regulation ensures that those registered have met the standards set to ensure safe and competent practice and thus public protection. Anyone who falsely claims to be registered commits an offence punishable by law. It ensures that there is an effective method in place for reviewing individuals on the register who are considered to be falling short of those standards and where necessary removing them from practice. Furthermore other approaches to regulation would not provide the comprehensive coverage, which we believe is necessary for patient safety and would not tackle the problem of regulatory gaps set out earlier.

Q5 Is statutory regulation appropriate or should other approaches be taken?

Who should regulate these groups?

24. The four main options which have been identified are:

Option 1

All existing regulators such as the Nursing and Midwifery Council (NMC) and the Health Professions Council (HPC) should take on the regulation of those staff who currently work with the professions they regulate. For example, the HPC could oversee regulation for all health and social care support staff who currently work with the the Allied Health Professions they regulate, and other regulators could oversee support staff working with their professional groups. They would, however, need a wider remit than they currently have in order to regulate new groups. Also, this option might assume that such staff worker roles will continue within the relatively narrow areas they occupy at present, with less facility to expand skills and competence to work in other areas of health and social care.

The UK Government has already agreed that this is the best approach for professionals supplementary to dentistry (currently dental therapists and dental hygienists) who have been regulated by the General Dental Council since 1986, and will be gaining a more integrated status within the GDC -regulated family in forthcoming legislation. There will be further consultation in 2004 on taking a similar approach to pharmacy technicians.

Option 2

All health care support staff could be regulated by an expanded HPC.

Option 3

A mixture of the above, with some staff whose work is relatively specialised within a narrowly defined role being regulated by the regulator already covering that professional area, and others whose work may span several professional boundaries being regulated by an expanded Health Professions Council.

Option 4

The Scottish Social Services Council (SSSC) which is responsible for regulating the social care workforce in Scotland might oversee regulation for all health and social care support staff in Scotland.

25. The Department of Health in England has considered the first three of these options and believes that the most appropriate way forward for health care support staff would be option 2: to set up the regulation of health care support staff by means of a Statutory Committee within the Health Professions Council - the Health Occupations Committee.

26. This will be overseen by the HPC and share the same registration and fitness to practice operations, thus minimising costs and registrants fees. The Health Occupations Committee would have its own registrant and lay members forming an additional part of the HPC Council, and its Chair would sit on the full Health Professions Council. The legislation governing the HPC would be amended to safeguard the position of these staff by making it a duty for the HPC to consult the Health Occupations Committee when deciding matters of concern to them. It could have a parallel Education and Training committee of its own, with statutory links to that of HPC and any other regulator which might be involved in contributing to practice and training standards for these staff. It would share the HPC's fitness to practice and registration machinery, Chief Executive and other staff.

27. In proposing this option, the Department of Health wishes to avoid unnecessary bureaucracy and to keep costs to a minimum. The proposal to use the system already provided by the HPC would avoid the need for a new separate regulator to set strategy and employ expensive senior executives. It would also save on premises and operational and training costs by sharing these with an existing group of registrants. This proposal should keep registration fees to a reasonable level, perhaps about 20-25 per registrant per year, an important issue for a relatively low-paid workforce.

28. The Health Professions Council has as part of its consultation on the implementation of the Health Professions Order, considered the criteria to be applied by the Council to extending its regulation to further groups. We welcome the thorough and positive approach HPC is taking in identifying the issues involved, including supervision, accountability and autonomy as well as the regulation of emerging roles within new patterns of care delivery and ways of working which may call for a more adventurous approach.

Q6 Should Scotland follow any decision that might be reached in England in order to make sure transferability of staff and public protection by having one system for the UK?

Q7 Should the Nursing and Midwifery Council (NMC) regulate those groups of assistants and support staff who currently work with the professions they regulate? Should the Health Professions Council (HPC) regulate those groups of assistants and support staff who currently work with the professions they regulate?

Q8 Should the SSSC be the regulatory body for all health and social care support staff or for social care support staff only?

Q9 If the HPC is the most appropriate body, should regulation be by way of a statutory Health Occupations Committee or would other options be preferable?

Q10 Would regulation of assistants and support staff by the bodies responsible for regulating those whom they support lead to other problems such as "second class workers"?

29. The development of a collaborative framework between regulators in both health and social care will require to be pursued in order to extend the protection of regulation without setting unnecessary barriers to staff movement and to joint working.

30 The Nursing and Midwifery Council and the Health Professions Council, as UK-wide regulatory bodies, and the Scottish Social Services Council will need to work together to facilitate the longer-term development of shared or mutually compatible standards for staff working in or moving between different settings; agreement between regulators about who regulates which group of practitioners; and shared registration information. In particular, this approach would allow for local transferability and prevent the need for dual registration for staff moving between settings. It would also help cross-boundary roles to develop with significant benefits for patients, service users staff and employers.

Q11 Are there other options for the structure of statutory self regulation we should consider?

A timetable for action

Timetable

31. Subject to final decisions to be taken in the light of this consultation, statutory regulation could be put in place for assistants and support staff by 2007 though it would take some time after that for all those staff groups agreed to achieve registration. A provisional timetable is:

• Consultation - May to August 2004
• Analysis and final decisions - October 2004
• Develop preparatory infrastructure necessary for statutory regulation:

Standardised training or induction requirements as basis for registration, based on national occupational standards projects due to complete by 2005

• Accreditation and roll out of training if needed
• Identification and initial voluntary registration

Code of conduct, performance and ethics, end 2005

• Draft legislation 2006
• Legislation passed by 2007
• Register and full regulatory system open by 2007

Conclusion

32. The Scottish Executive and the UK Government is committed to increasing public protection and improving quality in health and social care settings. This document seeks views on the way in which regulation should apply to health and social care support staff. In particular your views on these proposals and the specific questions raised in the text, and summarised at Annex A are sought by 27 August 2004.

Nursing Directorate
SWSI
Scottish Executive Health Department
Scottish Executive Education Department