Please, I want to subsidise miscreants! – reflections on the regulation consultation

Community Care today reports in digestible form on a Law Commission consultation opening today on the regulation of Health and Social Care. As someone who represents before both health and social care regulators, there was much to make my hackles rise in here, But I want to pick up on just one thing, as reported by Community Care:

One… proposal is that ministers will be able to give regulators the power to… make them pay the costs of their conduct hearings. While the commission says this could prove controversial, the current system of covering the costs through registration fees raises the question of “why good professionals should be expected to subsidise the miscreant” [page 196 of the report].

Well, it should be controversial, although when I reflect on some of the censorious comments that get made about the latest misconduct cases to be reported, I have my doubts – maybe this sentiment about subsidising the miscreants is widely held?

It is, however, misguided for at least two important reasons.

We will all pay for the miscreants, come what may

Let’s not beat about the bush, regulatory proceedings are expensive:

For example, information released by the GSCC under the 2000 Freedom of Information Act reveals that, in one case, they spent £34,551.62 plus VAT on legal representation—a cost way beyond the finances of the vast majority of social workers… [Ken McLaughlin British Journal of Social Work [2010] volume 40(1) pp311-327]

Have you got an annual salary or more to spare just in case? Thought not! Take careful note – the regulator’s costs tend to be vastly greater than the registrant’s costs, and this proposal is for you to take on the unquantifiable bottomless pit risk of the regulator’s costs, not just your own. A risk you can’t avoid once caught up. Under the current GSCC regime, once the ball has started rolling, you can’t simply agree to drop off the register, nor even agree to negotiate a sanction – the process – and risk – rolls on remorselessly regardless.

As a result, if professional registration carries with it a risk of liability of this magnitude, professionals of any sense will protect themselves against potential liability by membership schemes or insurance – as many health professionals already do. And, of course, the underpinning principle of insurance, even if weighted, is precisely that risk is spread amongst the populaton that carries the risk so as to make it affordable.

To put it another way, “good professionals will subsidise miscreants”, out of pure self-interest, but now with an element of profit for the insurance companies thown in, which is not there when we subsidise “miscreants” only through our registration fees.

Personally, I’d opt to share the risk, but without the profit motive – wouldn’t you?

There but for the grace of God

The other point is that my long experience is that most people in front of misconduct committees don’t deserve the epithet “miscreants”.

So often, my clients are bemused about how they came to be here. That character flaw. That momentary lapse of judgement. That backlog caused by an excessive caseload. That case where the media was crying for a scapegoat. That step I didn’t take which, with hindsight, I can see would have helped. That personality clash with my line manager. That decision I took when no supervisor was available. That was professional misconduct?

Sometimes, of course, it isn’t: statistics for mid 2010 (when there was a rather larger number of cases being decided than now) showed that less than half of registrants coming to full hearings were unfit to practice (suspended or removed) and more than 10% had not committed misconduct. Half were admonished. Would you want this kind of costs risk for a ticking off – one that you may even accept you deserve?

Which is why I say, there but for the grace of God. And why I happily offer to share the risk with you, and ask you to share it with me.

You can respond to the consultation here: