NHS Employers' responses to recent PSA consultations

General comments

We are pleased to have the opportunity to respond to the Professional Standards Authority (PSA) consultation on strengthening the approach to safeguarding with Accredited Registers.

While our respective remits are different, we have a shared interest in supporting health and care professionals and services to provide the safest possible care.

Whilst we support the PSA’s commitment to strengthening safeguarding measures with Accredited Registers, a significant proportion of registrants are likely to be employed by organisations carrying out their own checks. Employment check requirements sit with individual employers and therefore it is important that any additional requirements to obtain a DBS check by the Accredited Register are proportionate to risk and do not duplicate e.g., should be limited to those on the register who are not associated with or directly employed by an NHS employer.

Consultation questions

Q1.     Do you agree that having a clearer requirement for Accredited Registers to request the highest level of criminal records check that a registrant is eligible for, is important to ensure protection of the public?

A:  Maybe

Please explain your answer:

The only circumstance in which we would support additional requirements to obtain a DBS check by the Accredited Register is if they were limited to those on the register who are not associated with or directly employed by an NHS employer.

The role of the Accredited Register is to ensure individuals on their register are fit/safe to practice in their chosen profession. A significant proportion of registrants are likely to be employed by organisations carrying out their own checks. Employment check requirements sit with individual employers and therefore any additional requirements to obtain a DBS check by the Accredited Register should be proportionate to risk and not duplicate e.g., should be limited to those on the register who are not associated with or directly employed by an NHS employer.

If it is decided to introduce a more explicit requirement for Accredited Registers to access DBS checks, consideration must also be given to how Accredited Registers will monitor and administer any repeat DBS checks that may be required on self-employed/independent practitioners to ensure they are still legally eligible to obtain checks and those checks are at the right level.

It is also worth noting that while carrying out a criminal record check can provide a level of assurance about a person’s suitability for a role, it should not be relied on in isolation. Criminal record information should be considered alongside the wider range of evidence gathered during the registration process.  A clear and transparent process must also be in place for instances where an individual’s criminal record status changes while they are on an Accredited Register. 

Q2.     Do you agree that having a clearer requirement for Accredited Registers to request the highest level of criminal records check that a registrant is eligible for, is important to ensure confidence in the accreditation Quality Mark?

A: Maybe

Please explain your answer:

As per answer above, carrying out a criminal record check can help to ensure unsuitable people are prevented from entering the workforce and gaining access to individuals who may be more vulnerable because they are receiving heath care or services.

While this type of check can provide a level of assurance about a person’s suitability it should not be relied on in isolation. Criminal record information should be considered alongside the wider range of evidence gathered during the registration process.

Employment check requirements sit with individual employers and therefore any additional requirements to obtain a DBS check by the Accredited Register should be proportionate to risk and not duplicate e.g., should be limited to those on the register who are not associated with or directly employed by an NHS employer.

Q3.     Do you agree that if a registrant has already been subject to an appropriate level of criminal records check by an employer, then an Accredited Register should not need to do so providing they can see evidence of this?

A:  Maybe

Please explain your answer:

DBS disclosure certificates have no specific term of validity. They only provide information that’s known about an individual at the time of issue. The most reliable way of ensuring access to the most up to date information about a person’s criminal record status and therefore enabling portability, is by encouraging them to subscribe to the DBS update service.

It may or may not be appropriate for Accredited Registers to accept a disclosure certificate that was obtained for previous employment based on risk assessment, for example if the disclosure was obtained some time ago, eligibility requirements may have changed and any lapses in time may also mean the person’s criminal record status could have changed. Accredited Registers would need risk assessment processes / criteria in place to make the decision on portability. When accepting a previous disclosure, there must always be a check of the applicant’s identity to ensure it matches the details on the certificate and a check to ensure the certificate is the right level and type to be admitted to the register.  

Q4.     Are you aware of any examples in which risk of harm to a member of the public seeking the services of an Accredited Register practitioner could have been potentially avoided, by a criminal records check?

A:  No

Please explain your answer:

Our members are employers of registrants and as such will carry out their own DBS checks for eligible roles.

Q5.     In cases where Accredited Registers could access enhanced criminal records checks for applicants for registrants, and detail of spent and unspent convictions, what factors do you think are important to consider in decisions by the Accredited Register about suitability to be on the Register?

A:  In all cases, a DBS disclosure will only provide the basic facts about the date of a conviction or other offence, the offence committed, the court, and the sentence or disposal. It will not provide any information about the circumstances surrounding the offence.

Any risk assessment should carefully consider the individual’s skills, experience and ability to do the type of role against the offences disclosed, taking into account the following points:

• The relevancy of any offences to the chosen profession. It is essential that any assessment considers offences that are relevant to the nature of the role/profession and where there may be ongoing concerns about the individual’s conduct or behaviour.
• Any legal or regulatory requirements. For example, under regulated activity, a person must not be allowed to engage with vulnerable groups (adults, children or both adults and children) where the DBS have made a barring decision which would prevent them from working or volunteering with that specific group or groups.
• The nature and seriousness of the offence(s). This is important because all offence codes cover a broad range of crimes that significantly vary in terms of seriousness.
• The age of the applicant at the time of the offence(s). Crimes that date back to when the person was growing up may not be relevant because applicants have put their past behind them.
• If there is a repeat or pattern of offending behaviour. Patterns of offending behaviour or repeated allegations may indicate that they have not put their offending behind them. 
• The circumstances surrounding the offending behaviour and the explanation offered by the individual. Consideration should be given to any change in the applicant’s circumstances since the offence/s or took place. For instance, those who were convicted when they were young, often do not reoffend once they have family or financial responsibilities. It may be helpful to reflect on the applicant’s attitude at the time of the offence and now.
• Any life experiences they may have had since the offending behaviour to evidence their rehabilitation. Many people reach a point where they want to put their offending behind them and can demonstrate how they have put their talents to more constructive use. For example, volunteering activities or work in the community they have undertaken, or evidence they can provide which demonstrates a change in their home and personal circumstances.

Careful consideration of the situation would be required before admitting an individual to an Accredited Register who is:

• on probation (in a legal sense)
• under a suspended prison sentence
• released from prison on parole
• still under a conditional discharge
• subject to Terrorism Prevention and Investigation Measures.

Q6.     Do you think that basic levels of criminal records checks, which may be accessed by anyone, should be considered for those not eligible for standard or enhanced levels of checks?

A:  Maybe

Please explain your answer:

Basic checks may be obtained for positions that are covered by the Rehabilitation of Offenders Act 1974, referred to within legislation as non-exempt positions. A basic check provides information about conditional cautions and convictions that are unspent only. This is because the Act allows for certain offences to become legally ignored or spent after a specified rehabilitation period. The length of any rehabilitation period is determined by the sentence or out-of-court disposal received. Once the rehabilitation period has elapsed and if the individual has not been reconvicted at any time during this period, their record becomes spent and they will not be required to declare these offences, nor are employers permitted to consider this type of information in their assessment of suitability for the position. Accredited Registers must ensure they do not ask for information they are not legally permitted to consider as part of their assessment of suitability.

In the NHS, basic checks may be considered for any position that would not normally be eligible for a standard or enhanced check. We suggest to employers that this level of check applies to roles which have a higher level of responsibility, accountability, or trust and where such a check would be considered proportionate to any associated risks.

Q7.     Are there any other actions you think we should take to strengthen safeguarding for users of Accredited Registers?

A:  Our members are advised to make it clear to staff that they have a duty under the NHS Terms and Conditions of Service to notify any organisation they are employed or volunteering with, if they subsequently become subject to any convictions, police cautions, conditional cautions, or other similar offences, at any point during their term of appointment. It may be in an Accredited Registers best interest to explore outlining similar requirements for registrants if an explicit requirement is introduced for Accredited Registered to access criminal record checks.

Clearly stating the type of checks that will be undertaken as part of the application process will allow individuals to make an informed decision about whether to apply to join an Accredited Register. Being clear about automatic exclusions that apply to regulated activity i.e. if they appear on the adults or children’s barred list(s), will be helpful to ensure time and resources are not wasted on requiring individuals to go through an application process, only for their application to be rejected further down the line.

Providing information about the Accredited Register’s policy on accepting people who have a criminal record onto a register will help reassure applicants that the Accredited Register is committed to adhering to fair practice.

Providing applicants with a point of contact within the Accredited Register is also recommended in case individuals have any questions about the application process. Given the complexities of the criminal justice system, signposting applicants to charity bodies such as Nacro or Unlock will also be important to ensure they understand what criminal record information they need to declare and their rights when doing so.

Q8.     Please set out any impacts that the proposals set out in this paper would be likely to have on your organisation or considerations that we should take into account when assessing the impact of the proposals.

A:  The role of the Accredited Register is to ensure individuals on their register are fit/safe to practice in their chosen profession. A significant proportion of registrants are likely to be employed by organisations carrying out their own checks. Employment check requirements sit with individual employers and therefore it is important that any additional requirements to obtain a DBS check by the Accredited Register are proportionate to risk and do not duplicate e.g., should be limited to those on the register who are not associated with or directly employed by an NHS employer.

We would not support the introduction of a requirement for healthcare professionals who are employed by an NHS employer, to pay for another disclosure for accredited registration purposes. We believe this would have a detrimental impact on the existing NHS workforce, particularly given the current cost of living crisis. It could also have a detrimental impact on future workforce numbers, if individuals are discouraged to enter a profession.   

Q9.     Are there any aspects of these proposals that you feel could result in differential treatment of, or impact on, groups or individuals based on the following characteristics as defined under the Equality Act 2010?

A:  As per answer above, we would not support the introduction of a requirement for healthcare professionals who are employed by an NHS employer, to pay for another disclosure for accredited registration purposes. We believe this would have a detrimental impact on the existing NHS workforce and on future workforce numbers. Groups or individuals from more disadvantaged backgrounds (a circumstance that can intersect with race for example) could be more greatly impacted by the proposals.

Accredited Registers must be also able to demonstrate that they are only asking for information that is strictly necessary for them to gain assurance of an individual’s suitability to be admitted to a register, to avoid differential treatment of, or impact on, certain groups or individuals. This will also be of utmost importance to ensure compliance with the General Data Protection Regulation (GDPR).

General comments

We are pleased to have the opportunity to respond to the Professional Standards Authority (PSA) consultation on the PSA strategic plan.

While our respective remits are different, we have a shared interest in supporting health and care professionals and services to provide the saftest possible care.

We support the three strategic aims identified in the PSA’s strategy and welcome the commitments to equality, diversity, and inclusion, to facilitating better information sharing and a more joined-up approach to developing standards. These are all things that employers want from regulation going forward.

We look forward to seeing how the PSA will use its unique role as a positive force to drive change and to facilitate shared approaches across professional regulators.

Consultation questions

Are there any factors we should consider in addition to those we have identified in the strategic plan that will affect the regulatory landscape in the next three years?

No. We believe the main factors that will affect the regulatory landscape in the next three years have been clearly identified in the draft strategic plan.

It might be useful for the strategy to make explicit reference to how the PSA will use its unique role to facilitate shared approaches across the statutory regulators in responding to the health and social care operating context and regulatory challenges identified in the strategic plan.

Which of the four themes in Safer Care for All do you think are the most important for us to focus on?

We support all the themes in the Safer Care for All report; tackling inequalities; regulating for new risks, facing up to the workforce crisis; and accountability and public safety are all things that employers want to see from workforce regulation going forward.  

Are there any recommendations and commitments in Safe Care for All that you think we should prioritise for action?

As above, we support all the themes in the Safer Care for All report. The themes reflect what employers would like to see from workforce regulation going forward.   

Are there other activities not included in the draft strategic plan that you think the Authority should prioritise in the period 2023 – 26?

We support the core purpose of the PSA’s strategy and the direction that it sets to delivering regulatory statutory duties effectively and efficiently. We particularly welcome the PSA’s commitment to developing regulatory strategies to better support workforce needs. Employers want a regulatory system that can operate faster, fairer, and more flexibly to support the development of a flexible workforce that is able to meet the challenges of delivering healthcare. 

We have a shared interest in supporting health and care professionals and services to provide the saftest possible care. We look forward to working with the PSA further as you develop these strategic aims and associated activities. 

Do you agree that our vision (safer care for all through high standards of competence and conduct in health and social care professionals) is appropriate for the work of the Authority?

Yes. The vision provides an appropriate goal to be reached by the PSA. 

Do you agree that our mission (to protect patients, service users and the public by improving the regulation and registration of health and social care professionals) is appropriate for the work of the Authority?

Yes. The mission provides an appropriate direction to be followed by the PSA.

Do you agree with our proposed strategic aim 1: To protect the public by delivering highly effective oversight of regulation and registration; and how we plan to deliver this aim and monitor progress?

We welcome strategic aim one and the actions proposed to deliver it.

In particular, we note and support the proposed actions to deliver statutory duties, targeting resources where there is greatest risk to the public. It is sensible to focus on core functions and how these functions can be delivered well and add value, before looking to grow the role and scope of the PSA.

What is not clear from the strategy, is how much influence the PSA will have on the actions and regulatory frameworks of the main professional regulators.  We are keen to know more about how the PSA will use its unique role as a convenor of regulators to affect positive changes for the workforce.

For example, how we swiftly adapt to use technology and more simulation as part of training, making faster progress on reducing discrimination and making progress on a common code for professionals. 

Do you agree with proposed strategic aim 2: To make regulation and registration better and fairer; and how we plan to deliver this aim and monitor progress?

We support the PSA’s second strategic aim and the objectives to make regulation and registration better and fairer.

We particularly welcome the PSA’s commitment to promoting and monitoring equality, diversity, and inclusion in their work and in those they oversea in this strategic aim. The strategy makes reference to EDI as key themes underpinning all three strategic aims; however, it would be helpful if the strategy more explicitly demonstrated EDI outcomes across all workstreams and in relation to all strategic aims.  

We are keen to know more about the influencing power the PSA has on the actions of the main professional regulators to ensure their processes and procedures are efficient, effective, and person-centred. And to facilitate shared approaches. As an example, how much can the PSA influence regulator processes for staff who find their practice under review. We are aware that registrants subject to fitness to practice proceedings experience widely different approaches depending on who they are regulated by. This may be due in part to the legislation that governs the regulators processes, but we believe the PSA has a positive role to play in ensuring co-ordination and consistency across the main professional regulators as far as possible.   

The strategy refers to the oversight role of the PSA to lead the development of more effective regulation through undertaking research, providing policy advice and sharing good practice. Again, we would be keen to know more about if this will help facilitate shared approaches across regulators to improve consistency.

As an example, we are aware that the NMC has a current commitment to review advanced nursing and midwifery practice, including consideration of whether regulation is needed. But we also know that the HCPC has previously conducted a review and concluded against the development of a new regulatory framework for advanced practice at this stage. We believe the PSA could add real value by playing a positive role in ensuring co-ordination and consistency across the main professional regulators in instances such as this.  

Undertaking research and providing policy advice does feel like a helpful role for the PSA, but to what end. The strategy could be more explicit and ambitious about the purpose of this activity, for instance is this activity about influencing the main regulators and setting the ‘standard’ for them to work towards? We are aware that each of the regulators do their own policy work, if the PSA could undertake this research and issue policy advice upstream of the regulators, this could add real value by facilitating greater co-ordination and regulatory consistency.    

Do you agree with our proposed strategic aim 3: To promote and support safer care for all; and how we plan to deliver this aim and monitor progress?

We welcome strategic aim three and the actions proposed to deliver it.

In particular, we note and support the proposed actions to implement regulatory strategies to address workforce issues. The breadth of the workforce challenges in the health and care sector are well documented and covered at length in the PSA’s ‘safer care for all’ report.

The fundamentals of each part of the regulatory system must be working well to ensure the sector has the workforce flow right. The PSA has an important oversight role in ensuring registration processes are managed effectively and once on the register, ensuring individuals have a good experience of being a registrant and feel valued. So, processes like renewals, revalidation, fitness to practice must be dealt with efficiently and be person-centred.

We support the PSA in being bold and challenging of regulatory processes. For example, using their unique role within the regulatory landscape to influence a different way of thinking about how we educate the workforce and meet regulatory standards in a different way. As an example, the sector needs to train more people, but there is only so much capacity, so we would be keen to see the use of technology and simulation y featuring in discussion about how regulatory strategies can support workforce strategies. 

How do you think the role of the Authority should evolve in the future, particularly in the context of the reform of professional regulation in health and social care?

The legislative reform of professional regulation presents an opportunity to review how healthcare professionals are regulated. We agree that the PSA has an important role in championing the reform of professional regulation and supporting the implementation of that reform. 

We are aware of the uncertainty posed to the PSA and those it overseas by the regulatory reform programme, and the delayed progress. We appreciate the PSA’s forward-looking approach to reform and the regulatory solutions needed to tackle the challenges the health and social care sector is currently facing.

Despite the uncertainty of the changes to be implemented and the timetable for reform, we believe the PSA will continue to have a role in driving regulatory practices to be better. We look forward to seeing how the PSA will use its unique role as a positive force to drive change and to facilitate shared approaches across professional regulators.

Please set out any impacts that the proposals set out in the draft strategic plan would be likely to have on you and/or your organisation, or considerations that we should take into account when assessing the impact of the proposals.

At this stage, we are not aware (and do not have the evidence to determine) how the aims and objectives may impact on the employers we represent.

We look forward to continuing to work with the PSA as you develop these strategic aims and associated activities, so that we can represent the voice of employers on policy and practice that will impact on the education, skills and employment of the workforce.

Are there any aspects of these proposals that you feel could result in differential treatment of, or impact on, groups or individuals based on the characteristics as defined under the Equality Act 2010.

We welcome the PSA’s intention that the strategy will see indicators of equality, diversity and inclusion significantly improve. We are not aware (and do not have the evidence to determine) how the aims and objectives may impact on people with protected characteristics. We would be interested to know what work the PSA has done or plans to do to evaluate any potential impact of the strategy or actions within it on people with protected characteristics.

We are pleased to see the prominence the PSA has placed on equality, diversity, and inclusion in the strategy, by means of a specific strategic aim relating to making regulation and registration better and fairer. We are aware that there is some evidence suggesting unequal experiences of the professional regulator processes associated with different protected characteristics and look forward to learning more about the PSA’s future work in relation to EDI.