Response to Department of Health and Social Care's consultation on 'Reforming the General Medical Council legislative framework'

As the regulator for social workers in England, we welcome the opportunity to comment on the Department of Health and Social Care’s consultation ‘Reforming the General Medical Council legislative framework’.

Consultation feedback

Overall, we support the aim to modernise and implement a more flexible regulatory model across UK regulators.

Wherever possible we have answered the consultation questions in this response. In some sections we have provided more general comments as well as sharing our experience of regulating with some of the powers in the consultation. We have also set out our views on the proposals based on our specialist regulation of social work.

Governance

We welcome the inclusion in the draft General Medical Council Order 2026 (‘the draft order’) of provisions to ensure that the General Medical Council (GMC) should apply good practice in relation to equality, diversity and inclusion as part of a more formalised approach. We also support a move towards greater autonomy and agility in approaches to regulation.

Social Work England does not have the same duty to have regard to any current or future principles set by the Professional Standards Authority for Health and Social Care (PSA) regarding equality, diversity and inclusion. We do however have the same duties to publish information under the Equality Act 2010 and similar duties towards the PSA derived from the National Health Service Reform and Health Care Professions Act 2002.

The draft order contains a provision to enable the regulator to issue guidance in connection with its functions and may vary or revoke the guidance. We would welcome clarification that guidance in this case refers to publicly available guidance for registrants etc, rather than internal guidance for regulator staff.

Also included in the draft order is a provision to ensure that the GMC puts in place (and publishes) arrangements for the purposes of:

• engaging the public in the exercise of its functions
• keeping the public informed about the exercise of its functions

We do not have a similar provision, and we are unclear of its intention, beyond effectively requiring the regulator to have a consultation plan in place. We are therefore unable to provide substantive comment here.

PSA evidence gathering

The PSA does not currently have the power to compel information sharing from Social Work England. However, under the Children and Social Work Act 2017 we do have a general duty of cooperation with other regulators and relevant bodies. We are also required specifically to cooperate with the PSA under the National Health Service Reform and Health Care Professions Act 2002. This may include information sharing and any decisions.

If Social Work England were to withhold such information this would likely be due to concerns about:

• disclosure of personal data, legally privileged material, or commercially sensitive information
• the appropriateness of the request in regard to the scope of the PSA and its exercising of its statutory functions

We would welcome consideration of greater clarity being included in the draft order on the scope of the obligation of the GMC to share information with the PSA, including:

• how necessity and proportionality are to be assessed
• whether the provision is intended to override or qualify existing legal restrictions on disclosure

Without such clarification, there may be a risk of dispute and legal challenge in relation to the limits of the obligation. We highlight this concern particularly in the context of the draft order being intended as a ‘blueprint’ for future legislative frameworks.

In Section 7A of The Social Workers Regulations 2018, we expressly clarify the primacy of data protection legislation. However, as we understand it, the power/duty proposed within the draft order would override confidentiality obligations and other restrictions (intended to cover Human Rights Act claims). Therefore, though we understand the basis of this power, we would benefit from greater clarity as to how this power is intended to interact with other duties of regulators to not disclose information under other legislative provisions (such as GDPR and family court restrictions).

Education and training

We are broadly supportive of the proposed powers and duties set out in the draft order.

We are supportive of the power set out section 27(3) that will allow the regulator to attend a course provider’s premises to monitor their ongoing ability to meet the education and training standards. This is not something which we are currently able to do, instead we operate a submission based annual monitoring process. We feel that having the ability to visit and speak to course providers, provides more scope to tailor and focus our regulatory oversight, as needed.

We note that the draft order does not set out (as our regulations do) other areas of the education and training process, such as:

• inspections
• reapproval of courses
• knowledge of English requirements
• publishing a list of approved courses
• requiring course providers to provide the regulator with specified information

We assume that this is intended to give the regulator the flexibility to define these processes in procedural rules. We are supportive of this approach, which gives the regulator greater flexibility and control to determine this themselves, which we expand upon in the rules making section below.

Registration

Article 34 of the draft order sets out that GMC must determine standards applicable to registration as a regulated professional. GMC’s standards must consider the following criteria:

• knowledge and skill
• experience
• professional performance
• conduct and ethics
• proficiency in the English language
• such other matters as GMC considers appropriate

Before determining its standards, GMC must consult such persons as it considers appropriate. It must also publish the standards and keep them under review. The standards published in our registration rules largely align with these proposals. We would support the proposed powers in article 34 of the draft order.

Article 39 of the draft order sets out that an entry relating to a regulated professional may be removed from the register by GMC under range of circumstances, including where an entry on the register has been procured fraudulently.

Section 14 of the Social Worker’s Regulations (2018) mandates removal for various offences, including where registration was fraudulently procured. We do not have powers for discretionary removal from the register.

We would suggest that there is a need for greater clarity within the draft order as to why, in cases of fraud, the proposed power to remove is discretionary. It is unclear in what circumstances GMC would permit a registrant to remain on the register in cases of fraud.

Fitness to practise - mandatory removal from the register

We would support the broadening of the list of offences considered within scope for mandatory removal from the register to further protect the public. We are compelled to remove social workers from our register if the social worker has been convicted of some serious criminal offences through our automatic removal process, and do not require fitness to practise proceedings. If a social worker is automatically removed from our register, they cannot apply for restoration.

However (under our current legislation), if a registered social worker committed the offences proposed within the broader list of the draft order, full fitness to practice proceedings would be required to take place. We would therefore welcome the ability to apply automatic removal in such cases.

We therefore welcome the proposal to allow the GMC to automatically remove registrants convicted of serious criminal offences, to improve public protection and avoid full fitness to practise processes.

Fitness to practise – grounds for action

Article 49(1) of the draft order states that the fitness to practise of a regulated professional may be impaired if the regulated professional:

• is unable to provide care to a sufficient standard
• has behaved in a way which amounts to misconduct
• is adversely affected by a physical or mental health condition

The grounds for action laid out in the draft order appear to us to be quite limited in scope. Social Work England’s list of grounds for action also includes criminal convictions/cautions that do not fall under Schedule 4, where there:

• has been other regulatory action taken in respect of a registrant
• are concerns about a social worker’s knowledge of the English language

We would like to understand more about the decision to limit the scope of Article 49(1) to the above list. Is it intended that more will fall under what is considered ‘misconduct’ for instance? We would also welcome clarification on where convictions/cautions that fall outside of Schedule 4 sit within the draft order.

Fitness to practise – proceedings

The draft order proposes to remove a rule to enable the GMC to no longer proceed with an allegation if more than 5 years have passed since the events took place, unless it is in the public interest. We have no such rule, but under Section 25 of the Social Worker’s Regulations (2018) ‘an alleged matter which occurred outside of the UK or at a time when the person was not registered, may only be grounds for the purposes of paragraph (1) where the regulator considers it in the public interest.’ This places some limits on us pursuing allegations which may be older, unless we consider it in the public interest to do so.

Article 51(7) of the draft order provides a case examiner with the ability to withdraw a referral to a fitness to practise panel if the panel has not yet reached a determination on whether fitness to practise is impaired. While we are able to broadly agree in principle that this may be a useful provision in some circumstances, we are unable to provide substantial comment without understanding the detail of grounds on which this power could be exercised. We also note there is a risk through introducing this power of undermining the credibility of case examiner decisions.

The draft order also makes provision that where a registrant does not respond to a case examiner’s offer of an accepted outcome within GMC’s timeframe, a case examiner may impose a final registration measure upon the registrant. This is not an accepted outcome, as the registrant has not agreed to the proposal. A separate power set out in Article 51(5)(b) of the draft order only applies where the case examiner concludes that the registrant’s fitness to practise is impaired.

Social Work England already has case examiner accepted disposal powers but can only impose an accepted disposal if the social worker agrees to impairment and sanction. We have in some instances been unable to effectively use our provisions to resolve cases at case examiner stage due to lack of engagement of a social worker in our processes, which then necessitates a referral to a final hearing. We consider case examiner disposal may offer a more efficient, fair outcome without the necessary resources expended to achieve this.

We are also of the view that we think it would be beneficial to the GMC to have the power to impose no impairment warnings, as set out in the draft order. We also note that the draft order proposes that, where a warning is issued to a registrant, GMC will have a duty to publish the warning as set out in Article 54(4)(a). We are supportive of the proposal to make publication a legal requirement rather than a matter of discretion. If a panel considers it appropriate to issue a warning, it has little value if it is not published.

Article 59(1) of the draft order provides that a review of an interim registration measure may be carried out by a case examiner or fitness to practise panel at any time during the period for which the measure has effect. We are supportive of this proposal and think it is beneficial to broaden the scope of decision makers that can undertake a review of an interim order to promote efficiency in decision making.

As set out in Article 58 of the draft order, GMC may apply to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland for an extension to an interim registration measure. A court will be able to extend the interim measure for a further 12 months with further extensions possible subject to GMC making further applications to the court.

We agree that a high court extension should be available, but we consider it useful that our provisions do not limit this to 12 months. The court should have discretion about how long to extend – this may in some circumstances be longer than 12 months.

Article 59(8) of the draft order provides that GMC or Medical Tribunal Service must publish a decision of a case examiner or fitness to practise panel whether or not to modify an interim registration measure. In relation to this proposal, we would highlight the need to balance the importance of publishing decisions so the public and/or employers can understand any restrictions, with how this is done to preserve fairness to the registrant.

Article 62 of the draft order sets out that GMC may apply to the High Court of Justice in England and Wales or the High Court of Justice in Northern Ireland for a writ of subpoena ad testificandum (a writ compelling an individual to attend as a witness) or a writ of subpoena duces tecum (a writ requiring the production of specific documents related to the proceedings). We are supportive of this proposal as we ourselves do not currently have express powers to seek a High Court subpoena for the purposes of witness attendance and/or production of documents. We instead need to rely on separate legislative provisions as set out in the Civil Procedure Rules without support from our own legislation.

We would consider it helpful to specifically have this power set out in our legislation as this would provide clarity as to the power and process.

Interim registration measures

We are supportive of the proposals both in relation to Articles 57 relating to panels’ ability to impose an interim registration measure and Article 59(1) which provides that a review can be undertaken by a case examiner or fitness to practise panel. We consider that both appear reasonable and are similar to powers that we currently have. 

Evidence gathering

With regards to the proposals in Article 61(2) of the draft order we have a similar power as set out in Section 16 of the Social Workers Regulations (2018), however we have not yet identified an appropriate circumstance in which to exercise this power and we currently consider that non co-operation issues can be addressed effectively in the fitness to practise process as a separate allegation. 

Rule-making powers

We do not have a substantive comment to make other than to note that these provisions roughly match our own rule making provisions. 

Revision of decisions

This article proposes an amendment to Section 26 of the NHS Reform and Health Care Professions Act 2002 to permit the PSA to ask the GMC to revise several types of decisions. We are not clear on the grounds under which this power would be exercised. For instance, would it be in instances where it was considered that the decision was insufficient to protect the public, or where there had been a material change of circumstances/error of fact/law? Without further information in relation to this we are not able to provide any more detailed comment.

Articles 76 and 77 provide that GMC may directly appeal to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland, against a number of fitness to practise panel decisions as outlined in the draft order.

We agree that there needs to be some mechanism for regulators to challenge some decisions by panels outside of relying on a PSA referral to high court or a registrant appeal or a judicial review. However, we do not wish to comment on whether this specific power is the most appropriate mechanism to do so.

Appeals

Article 69 provides that a registrant will have a right of appeal to an appeal panel of GMC against the following case examiner decisions, where a case examiner determines that a registrant’s fitness to practise is:

• not impaired but issues a warning
• impaired and takes no further action
• impaired and a registrant accepts that their fitness to practise is impaired and the proposed registration measure imposed through an accepted outcome
• impaired and imposes a final registration measure on a non-responding registrant
• where a case examiner confirms or modifies a registration measure on review

We understand this may be appropriate/useful for decisions imposed on a registrant who has not engaged. However, we would consider this disproportionate when there is no finding of impairment. We do not consider it necessary in circumstances where the registrant has agreed to the accepted disposal outcome. We would raise the question as to why an appeal would be permitted against a disposal that has already been accepted by the registrant.

The draft order also proposes that ‘A registrant will have a direct right of appeal to the High Court of Justice in England and Wales, the Court of Session in Scotland or the High Court of Justice in Northern Ireland against a fitness to practise panel decision’. We note with interest that this broadens the scope of decisions that our registrants would have a right to appeal on, including no impairment (with warning) and impaired but no further action. We will wait with interest to see how this power works in practice and the benefits it may bring.

As outlined at the outset of this response, we welcome the opportunity to provide feedback to the consultation. We hope you find the feedback useful and welcome any further conversations on our feedback if this will assist.

I hope the Department for Health and Social Care finds this feedback helpful. 

Yours sincerely,

Colum Conway

Chief Executive