Schedules Schedule 4: Oversight by the Professional Standards Authority for Health and Social Care
Schedule 4 provides for the National Health Service Reform and Health Care Professions Act 2002 (‘the 2002 Act’) to be amended to give the Professional Standards Authority for Health and Social Care (‘the PSA’) functions in respect of Social Work England, as the PSA has for other health and social care regulators. The amendments to the 2002 Act are as follows:
Paragraph 2 adds Social Work England to the list of regulatory bodies under section 25(3) of the 2002 Act. The PSA has general functions listed under section 25(2) of the 2002 Act. By virtue of Social Work England being made a ‘regulatory body’ under section 25(3), these general functions will now apply with regards to Social Work England, as will other functions provided for in Part 2 of the 2002 Act, other than those which are specifically excluded further to amendments made under this Schedule.
Paragraph 2 also amends subsections (3A) and (3B) of section 25 of the 2002 Act. These provisions were inserted into the 2002 Act by section 220 of the Health and Social Care Act 2012 as part of a number of amendments to various Acts to exclude social workers and social care workers in England from the definition of ‘registered health care professional’ and similar terms. This was in order to avoid the unintended consequence of social workers and social care workers in England falling within such definitions by virtue of them falling to be regulated by the HCPC. The amendments in paragraph 2 seek to maintain this position; to ensure that references in legislation to a regulatory body mentioned in section 25(3) of the 2002 Act do not generally include a reference to Social Work England or a reference to the HCPC or a regulatory body within section 25(3)(j) so far as it has functions relating to social care workers in England.
Paragraph 3 amends section 25A of the 2002 Act, which requires the Privy Council, by regulations, to require each regulatory body listed in section 25(3) of the 2002 Act to pay the PSA periodic fees of such amount as the Privy Council determines in respect of such of the PSA’s functions in relation to that body as are specified in the regulations. Paragraph 3 excludes Social Work England from the regulatory bodies to be captured by these regulations. Paragraph 3 also amends the heading of section 25A to specify that section 25A concerns ‘funding of the Authority by bodies other than Social Work England’.
Paragraph 4 provides for new section 25AA to be inserted into the 2002 Act, after section 25A. New section 25AA will require the Secretary of State, by regulations, to require Social Work England to pay the PSA periodic fees, of such amount as determined by the Secretary of State, in respect of such of the PSA’s functions in relation to Social Work England as are specified in the regulations. The functions referred to do not include the PSA’s functions under Section 26A of the 2002 Act. Section 25AA requires that the regulations must provide for the method of determining the amount of a fee under the regulations and sets out further details regarding the fee setting process
Paragraph 5 excludes Social Work England from section 25C of the 2002 Act, which provides, amongst other things, for the PSA to assist the Privy Council in the appointment of members of a regulatory body. As the Privy Council has no role in Social Work England, it is not necessary for this function to apply to Social Work England.
Paragraphs 6 to 8 make amendments to sections 25D to 25F of the 2002 Act, which allow regulatory bodies to hold certain voluntary registers and require those bodies establishing such voluntary registers to make impact assessments and consult before doing so. It is not intended that Social Work England should hold voluntary registers. The amendments at paragraphs 6 to 8 serve to exclude Social Work England from these provisions and to make consequential amendments in relation to this.
Paragraphs 9 to 11 make amendments to sections 25G to 25I of the 2002 Act, which provide for the PSA to accredit voluntary registers held by regulatory bodies and for the PSA to make an impact assessment and consult before accrediting such registers. As is not intended that Social Work England should hold voluntary registers, this function is not applicable and these paragraphs make the necessary amendments to exclude Social Work England from this function.
Paragraph 12 amends section 26A(1D) and (1E) of the 2002 Act. Under subsection (1C) of this provision, the Welsh Ministers, the Scottish Ministers or the relevant Northern Ireland department may request the PSA for advice on any matter connected with accreditation of registers under section 25G other than accreditation of registers referred to in subsection (1D). Paragraph 12(2) omits paragraph (b) from subsection (1D), since the reference to voluntary registers for those who are or have been participating in studies for the purpose of becoming a member of the social work profession in England in section 25G is omitted by the amendment made under paragraph 6(3) of this schedule. Paragraph 12(3) makes an amendment to subsection (1E) as a consequence of the amendment to subsection (1D).
Paragraph 13 excludes Social Work England from the PSA’s power under section 27(2) of the 2002 Act to direct a regulatory body to make rules. As Social Work England is a non-departmental public body for which the Secretary of State is accountable to Parliament, it would not be appropriate for the PSA to have this power of direction. This does not prevent the PSA making recommendations to the Secretary of State regarding Social Work England under its other powers.
Paragraph 14 amends section 28(1) of the 2002 Act. The Privy Council may make provision in regulations, by virtue of section 28(1), about the investigation by the PSA of complaints made to it about the way in which a regulatory body has exercised any of its functions. Paragraph 14 excludes Social Work England from the regulatory bodies referred to in section 28(1) of the 2002 Act such that the Privy Council may not make regulations about the investigation by the PSA of complaints made to it about the way in which Social Work England has exercised its functions.
Paragraph 15 adds new subsection 2A to section 29 of the 2002 Act. Under section 29, the PSA has the power to refer a case, where a relevant decision is made, to the relevant court, if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. Sections 29(1) and (2) set out what section 29 applies to and section 29(3) states that the things to which section 29 applies are ‘relevant decisions’. New subsection 2A indicates that section 29 is also to apply to any steps or decisions which are taken by Social Work England (or any of its committees or officers) in connection with fitness to practise or discipline and which are of a description specified in regulations made by the Secretary of State – these will be ‘relevant decisions’. This amendment extends the PSA’s function of referring cases to the relevant court, where the relevant decision is considered not sufficient for public protection, to apply to relevant decisions made by Social Work England, as provided for under new subsection (2A). Paragraph 15 also clarifies that the relevant court in relation to a relevant decision as a result of subsection (2A) means the High Court of Justice in England and Wales.
Paragraph 16 amends section 38 of the 2002 Act, to exclude regulations made under section 29(2A) from being subject to the negative resolution procedure and provides that they be made subject to the affirmative resolution procedure.