The tale of the GCC and the ‘Section 60 Order’
A week or so ago, we learned that the GCC were intent on Moving the Goalposts. This was covered by Professor David Colquhoun in his post: The General Chiropractic Council (GCC) wants to waive the rules. They were applying to the Privy Council for something called a ‘Section 60 Order’. I asked the GCC what this was and why it was being done. I received the following reply a few days ago.
In your email of 17 June, which I acknowledged that day, you said you understood that the General Council has asked the Privy Council Office to expedite a section 60 Order. You raised the following questions
• what this section 60 order’ is
• the purpose of this request
• the reasoning behind this request
• the full details of this request
• the changes this request will bring about if granted
• the impact on your complaints
I can give a short answer to the first question — the reference is to section 60 of the Health Act 1999 which gives power to modify the regulation of health professions, including chiropractic. This is the mechanism whereby a large programme of regulatory reform arising from the White Paper Trust Assurance and Safety — The Regulation of Health Professionals in the 21st Century is being taken forward.
As I explained in my email, I am providing the answers to your other questions by reference to the context, including the role of the Council for Healthcare Regulatory Excellence (CHRE). I will number the remainder of the paragraphs in this letter, for ease of reference.
1. CHRE is an independent body accountable to Parliament. It was established under the NHS Reform and Health Care Professions Act 2002. Its primary purpose is to promote the health, safety and well-being of patients and other members of the public. It scrutinises and oversees the nine UK health professions regulators, working with us in identifying and promoting good practice in regulation, carrying out research, developing policy and giving advice.
2. In early 2007, CHRE established a working group with the regulators to develop a common data set that would define and group together comparable information on
• all stages at which decisions are taken in respect of complaints made to a regulator
• final fitness to practise decisions
• key information relating to case management
• background information on registrants, including equality data
3. This project linked to other CHRE work strands, including harmonising sanctions available to regulators and consideration of data held/published on statutory registers.
4. It very quickly became apparent that there was great diversity in the regulatory regimes, particularly in respect of discretion that could be exercised in relation to complaints. The GMC, for example, had the greatest discretion and the highest threshold for referral of cases, while the GCC has no discretion and the lowest possible threshold for referral. The difference in the size of the professions being regulated did not appear to provide a sufficient rationale for such diversity.
5. A schematic of regulators’ fitness to practise processes was produced (copy attached) and this was considered by the General Council of the GCC in September 2007. Recognising that compared with other regulators, the GCC’s legislation lacked proportionality and targeting, the General Council established a short life working group to consider the issues and make recommendations.
6. In February 2008 the General Council agreed to ask for the Chiropractors Act 1994 and the Investigating Committee Rules to be amended by means of a section 60 Order to achieve the following changes and intended benefits
• raising the threshold for referral and provision of powers of consensual disposal for the Investigating Committee
• it is anticipated these two changes together will address
(a) public protection, in that some deficiencies in the conduct or practice of a practitioner can be remedied in a far more timely fashion eg by a warning issued by the Investigating Committee or by voluntary undertakings on the part of the practitioner
(b) proportionality, with the threshold for referral for a hearing being raised from ‘case to answer’ to ‘real prospect of success’
(c) targeting, so that relatively minor matters do not cause all parties to suffer unnecessary stress and incur considerable costs in respect of time and money
7. When the GCC originally made these requests, it accepted they would become part of a much broader Order within the White Paper programme of regulatory reform. As yet, there is no indication when that broader ‘fitness to practise’ Order will be drafted by government.
8. Earlier this month we reviewed the situation and decided to request that the Privy Council expedite the necessary Order.
9. As to the impact any change in our legislation will have on the complaints you have made, that will be a matter entirely for the Investigating Committee when they consider each of those 500+ complaints on their individual merits.
I do hope that the above information is helpful. In my experience, there is rarely a short answer to questions about the statutory schemes of regulation for health professionals, hence the inevitable length of this letter.
Chief Executive & Registrar
So, it all appears to be something that they have been planning for sometime, but have asked the Privy Council to expedite. I don’t know when any changes would be made or implemented.
What is curious is the GCC’s claim that the impact of any legislative changes will be a matter for the GCC’s Investigating Committee (IC). I am not an expert on this, but I would have thought that either the complaints have to be dealt with under the system in place when they were initiated or that the legislation would define how the changes would affect on-going complaints. It seems highly unlikely that the IC would have any discretion in deciding how to treat the pre-existing complaints. The latter way may lead to specualtion about the impartiality of the IC.