Review of the Standards of Good Regulation – GOC response

Thank you for the opportunity to respond to the Authority’s consultation on the Standards of Good Regulation. We support the aim of making the Standards a more effective, focused and useful tool for measuring performance.

As well as answering each question in our response there are key areas that we wish to highlight in particular:

  • The assessment of performance should be based on outcomes that assure public protection. This is more important than whether the Authority retains the existing structure of grouping Standards by function or changes to a principles-based approach. We would support a more qualitative approach to assessing outcomesthat ensure public protection such as whether regulators are setting the right standards, registering the right people and delivering correct fitness to practise decisions.
  • Where the Authority does use quantitative measures of performance we would encourage a more nuanced approach. We would encourage the Authority to give more account of the natural volatility of quarterly data and of how regulators’ statistics can be affected by matters beyond their control. This volatility can lead to the Authority drawing conclusions from the data that do not accurately reflect the regulator’s performance.
  • Particularly given the Authority’s funding arrangements, it is important that the review is proportionate and does not place unnecessary burden on either the regulators or the Authority itself, as such a burden would have to be met by registrants in the form of increased fees. Any proposed changes must therefore bear this in mind andavoid duplicating the work of other organisations. The consultationproposes potential new standards and therefore a ‘one in one out’ approach might be helpful, or alternatively the Authority might propose fewer, more consolidated standards. We support the latter in principle although it would be helpful to see a draft of how these may look in practice in order to provide feedback.
  • The performance review process could usefully become much more of a learning exercise, encouraging the sharing of good practice among regulators. It would be helpful if each standard could be supported with a clear rationale as to why it is important, the key outcomes which are expected to demonstrate compliance, and examples of recommended practices to implement or enhance performance.

Question 1(a): Should the Standards cover the regulators’ performance in respect of Standards and guidance?

Yes. Setting standards is a core function of the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews.

Question 1(b): What aspects of the work related to setting standards and guidance for registrants should the Standards focus on?

We are satisfied with the existing Standards of Good Regulation for guidance and standards. We do not believe the Authority should specify particular areas for all regulators to cover such as professionalism, openness and transparency as it should be for individual regulators to decide which areas their standards need to cover according to the scope and risk levels of the professions they regulate. While we would expect all regulators to cover those areas in their standards it is far from an exhaustive list of what ought to be covered, so it is not clear why these in particular have been chosen.

Question 2a): Should the Standards cover the regulators’ performance in education and training as set out in these proposals?

Yes. Quality assuring education and training is a core function of the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews.

Question 2b): What aspects of the work related to education and training should the Standards focus on?

We are satisfied with the existing Standards of Good Regulation for education. It would be helpful for the Authority to include an additional standard around setting and assessing learning objectives as proposed, as this work is important for patient safety.

Question 3a): Should the Standards cover the design and delivery of continuing fitness to practise schemes?

Yes. Ensuring our registrants’ continuing fitness to practise is an activity with important patient safety implications for the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews.

Question 3b): What aspects to the design and delivery of continuing fitness to practise schemes should the Standards include?

We are satisfied with the existing Standard of Good Regulation for continuing fitness to practise. It may be helpful to refine the standard to ensure that regulators' schemes are risk-based and proportionate.

Question 4a): Should the Standards cover the delivery of the registration function as set out in these proposals?

Yes. Maintaining a register is a core function of the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews.

Question 4b): What aspects of the registration function should the Standards focus on?

We are satisfied with the existing Standards of Good Regulation for registration. The existing third standard is a satisfactory measure of the accuracy, accessibility and clarity of the register so there is no need for a new standard covering these areas specifically.

Question 5a): Should the Authority continue to monitor the regulators’ activities to prevent illegal or unregistered practice and what level of priority should be given to this work?

Yes. Ensuring that unregistered individuals do not practise or use protected titles is an activity with important patient safety implications for the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews.

We would caution the Authority against placing too little emphasis on this area through a belief that many cases arise out of protecting registrants’ business interests. The Authority should be mindful that some stakeholders who have argued this point to the Authority may have a commercial interest in doing so themselves.

While there may sometimes be a commercial interest for registrants in raising illegal practice complaints that does not mean that there are not genuine patient safety risks involved. Our research[1] has shown there are patient safety risks from illegal practice in the optical sector and furthermore it is the will of Parliament that certain areas of practice are restricted to our registrants. As the vast majority of our registrants work in private practice (albeit contracting certain services to the NHS) we cannot rely on the NHS' systems to manage these risks.

Furthermore, if the Authority is concerned that regulators’ activities in this area can be driven by registrants’ businesses interests rather than by patient safety, then that could be seen as a reason for the Authority to retain effective oversight in this area rather than a reason for it not to. This is so the Authority can ensure that regulators are using their powers proportionately, fairly and in the interests of patients rather than falling victim to ‘regulatory capture’.

In respect of the level of priority, as with all the Standards of Good Regulation the Authority should ensure that the consideration is risk-based and proportionate. The priority might therefore be different for different regulators depending on the nature of the sectors they regulate.

Question 5b): If yes, do you agree that the Standard(s) should be limited to the areas we have identified above?

The Authority is correct that pursuing illegal practice cases involves spending registrants' money and therefore we would stress that the Authority should look positively on regulators who take proportionate, risk-based and patient safety-centred approaches to this area of work. We agree that the areas the Authority has identified would be helpful in ensuring this.

The primary reason for us undertaking, or not undertaking, work in this area is whether or not it is in the public interest, accounting for our statutory remit. How the work is funded should not be a determining factor.

Question 5c): In general, what aspects of the work related to the prevention of illegal or unregistered practice should the Standards focus on?

The Authority has identified the most important areas at paragraph 3.16.

Question 6a): Should the Standards cover fitness to practise?

Yes. Managing fitness to practise complaints is a core function of the GOC and all of the regulators that the Authority oversees. The Authority should continue to cover this area in its performance reviews however we recommend a more pragmatic and qualitative approach that gives consideration to the challenges faced by each individual regulator.

Question 6b): Which aspects of the activities related to fitness to practise should the Standards focus on?

We are satisfied with the activities that the existing Standards of Good Regulation for fitness to practise focus on with the exception of the tenth standard. As we will explore further in question 16, we believe that the Information Commissioner is the correct body to be judging regulators' information governance.In addition, we also have some overall comments about how the Authority assesses fitness to practise performance.

Prioritisation of factors that make up an effective FTP process

Currently, it feels as though the performance review is disproportionately considering the efficiency of the process, which is very limiting. While a timely process is undoubtedly important, particularly in respect of Interim Orders – to protect the public, uphold confidence in regulation and to avoid undue stress on complainants and registrants – that should be of secondary importance compared to ensuring that fairness and transparency of the process is of a sufficient calibre to ensure that the right decision is ultimately made.

The performance review process should therefore place a greater emphasis on regulators’ risk management, on the quality and fairness of their processes and on the quality and fairness of their decision-making. We believe such a rebalancing would help the Authority’s analysis of FTP to focus more on effective public protection and less on regulators’ administrative effectiveness.

Matters beyond regulators’ control

In looking at timeliness measures, the Authority should allow for more mitigation when matters are beyond regulators’ control. In particular, in respect of the fourth fitness to practise standard we believe it would be more helpful to judge performance through the time we take to reach an Interim Order (IO) decision once we have sufficient information to proceed than to use the Authority’s current method of looking at total time whatever the circumstances. This is because the total time is often affected by matters beyond our control, such as waiting for a police investigationor the engagement (or lack thereof) of complainants, registrants, witnesses and others involved in the FTP process.

The threshold for imposing an IO is high and it is correct that we only apply for one when we have the right information to make clear that it is necessary. We consider that our approach to dealing with IOs is risk-based and effective, and that when the Authority judges our performance by looking at the median time to process applications cases it does not necessarily reflect this. As this is one of the most important standards for ensuring public protection we think a more targeted and measured approach from the Authority would be helpful. This could also include greater consideration of the number of orders applied for and granted (as this is indicative of whether a regulator has set the bar too high or too low) and analysis of the regulator’s processes for managing risk generally (this will assist the Authority in determining, where they have timescale concerns, whether the problem is efficiency or a genuine risk to the public through lack of robust risk-management processes).

The Authority must also account for other matters outside of regulators’ control such as their legislative frameworks and the Parliamentary time required to change them.

Common definitions

Not all regulators work to the same definition of terms such as complaint or allegation.It would therefore be helpful if the Authority could work with the regulators to try to achieve common definitions to ensure fairness of how our performance is analysed and benchmarked across the sector.Similarly, a common definition of when to start the clock for an allegation would be helpful.

Question 7a): Should the Standards cover the governance activities of the regulators?

We agree that good governance is important in ensuring organisational effectiveness. Being transparent with all stakeholders in relation to our governance is critical in maintaining public confidence in regulation and our ability to protect the public.

We have a number of legal responsibilities and are accountable to Parliament, the public and the Charity Commission in relation to good governance. We already have a number of reporting requirements – for example by producing and submitting an annual report and annual return. We seek to comply with the UKCorporate Governance Code[2] and the Charity Governance Code[3] where relevant and follow the recommendations in these codes in relation to report on governance in our annual report to ensure we are transparent. We are content for the Authority to consider governance as part of the performance review process, however we recommend there is a clear rationale and clarity on how the Authority will measure the outcomes of effective performance in an objective and proportionate way and that there is not overlap with other standards. We also recommend that the Authority considers the current reporting requirements regulators have to other bodies in relation to governance, to avoid duplication where possible.

Question 7b): Which aspects of the activities related to governance should the Standards focus on?

We believe the areas identified at paragraph 3.23 could be suitable, providing it is possible for the Authority to measure the outcomes in these areas in a proportionate way and consideration is given to any unintended impacts of measurement. A culture of continuous reflection and learning is important in ensuring effective governance, therefore any measurement in this area should support regulators in the proactive identification of issues to be addressed.

We view the areas identified at paragraph 3.23 as being a fairly limited view of governance and would suggest the Authority consider a wider definition of governance such as the areas identified in the charity governance code (ensuring consideration of overlap with other standards), which is also applicable to public bodies who are not charities.The code includes the following seven principles of good governance:

  1. Organisational purpose – clarity and effective delivery of organisational strategy/aims (performance and assurance).
  2. Leadership – strategic leadership consistent with organisational aims.
  3. Integrity – culture and values being consistent with organisational purpose and a focus on public protection.
  4. Decision making, risk and control – effective decision making and risk management processes.
  5. Board effectiveness – team work, challenge, tone, conduct, appointment, appraisal etc
  6. Diversity – protected characteristics, backgrounds, life experiences, career paths and diversity of thought – used to enhance decision making
  7. Openness and Accountability – transparency, effective two way communication with stakeholders and continuous evaluation and learning.

For each of these principles the code includes a rationale, key outcomes and recommended practice. If a governance standard is introduced it is important to enable regulators to be able to explain their approaches. The comply/apply and explain principle in relation to good governance practice is well established in all of the governance codes.

Question 7c): Do you have other comments on our approach to governance?

We have no further comment in this area.

Question 8) Should we introduce a new Standard that requires regulators to have mechanisms that enable them to gather information from students and tutors about compliance with minimum standards of safety?

We agree that this work is important but would expect such mechanisms to form part of meeting the existing second and third Standards for education. Therefore we do not feel that a new Standard is necessary.

Question 9) Should we adjust the wording of the Standards to focus on regulators’ work in ensuring the robustness of learning assessments?

We agree that the robustness of learning assessments is a crucial part of regulators’ work in this area as that is how we obtain assurance that a student has the necessary education and skills to enter the professional register. We agree that regulators should avoid unnecessary duplication but we also recognise from our perspective that there must be some relevant indicators and evidence available to us to take into account so we can provide proactive assurance to patients and the public that any educational and training learning outcomes can be, and have been, achieved.

We need to make sure that we have defined the right learning outcomes as well as ensuring that assessments are robust.We agree that this should be proportionate and avoid duplication.

Question 10) Should the Standard covering continuing fitness to practise be expanded to cover the efficacy of the scheme and the regulators’ processes for using learning from the scheme to inform other functions?

Yes. It would be useful for the Authority in its analysis of continuing FTP to ensure that regulators are regularly reviewing and learning from their schemes to ensure registrants’ continued fitness to practise. In doing so, the Authority must take account of the type of scheme operated and the timescales of cycles/periods. Some regulatorsmay do this type of review annually as they phase completion by registrants, but others like us may look at this less frequently due to the nature of the scheme.

Question 11) Should we introduce a Standard that covers the portion of the fitness to practise process between the IC/case examiner decision and the final panel?

We agree that it is important that allegations are well-drafted to avoid under-prosecution (and over-prosecution as this can lead to unnecessary delays) and that the Authority should scrutinise this as part of the performance review process. However it is does not necessarily need a new standard to achieve this. If shortcomings in a regulator’s drafting of allegations were leading to inadequate decision-making then it would lead to doubt as to whether decisions were protecting the public and maintaining confidence in the professions. Such shortcomings therefore ought to be reflected in the Authority’s analysis of the existing eighth FTP standard.