Determining when a medical practitioner’s practise is covered by practising privilege is essential to avoid committing a criminal offence under the Health and Social Care Act 2008. Failing to establish this protection can leave practitioners exposed to the offence of carrying on a regulated activity in the absence of being registered with CQC to do so.

Such an offence can be dealt with in the Magistrates’ or Crown Court and if convicted can lead to an unlimited fine and/or a sentence of up to 12 months’ imprisonment. Therefore, ensuring the avoidance of this offence and preserving the practitioner’s liberty should be a principal consideration when they enter into the sphere of regulated practise.

What are Practising Privileges?

CQC defines practising privileges as “a well-established system of checks and agreements to enable doctors to practise in hospitals without being directly employed by them”. This offers practitioners flexibility in private practise, such as renting consulting rooms, and affords them protection under the provider’s registration. As a consequence, they fall under a specific exemption within the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Current CQC Guidance – “The Scope of Registration” May 2022

CQC’s position on practising privileges offers a helpful starting point. Crucially, all aspects of a consultation must be carried out under the policies and management of the hospital.

CQC expects all independent healthcare providers who grant practising privileges to medical practitioners to ensure they have robust processes in place, ensuring full pre-employment checks are undertaken in line with Schedule 3 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Such pre-employment checks and procedures must be robust and be undertaken for all medical staff, ensuring that safe care and treatment is provided to patients at all times. The independent healthcare provider themselves must be satisfied that all necessary checks have been successfully completed and be able to provide evidence to this effect.

Following the Covid pandemic, CQC now also expects independent healthcare providers to have action plans in place regarding the withdrawing of practising privileges from medical practitioners who are no longer providing medical services at their location.

The Scope of Regulation

Despite CQC placing these overarching obligations on providers, it is also necessary for the medical practitioner themselves to take the responsibility and initiative to protect themselves from criminal investigation and conviction. Familiarising themselves with what is considered a regulated activity, the scope of CQC regulation as a whole and where their practise falls within this is imperative.

Under Section 8(1) of the Health and Social Care Act 2008, a regulated activity is considered “an activity involving, or connected with, the provision of health or social care”.  The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014  define the regulated activities falling under the scope of regulation unless an exception or exemption is deemed to apply.

Service providers (including individuals, partnerships, and organisations) must consequently register with CQC when directly responsible for carrying on a regulated activity or activities.

Medical practitioners must therefore acquaint themselves with the breadth of this legislation in order to confidently determine whether they are afforded sufficient protection by their practising privileges alone.

Health and Social Care Solicitors Guildford and London

At Gordons Partnership, we have a specialist Health and Social Care Provider Team led by Neil Grant, who has over 25 years of experience working in the sector. As CQC lawyers, our clients include care homes, home care agencies, supported living services, GPs, dentists, independent hospitals and private clinics.

To speak to our experienced and knowledgeable team today, please call 020 7421 9421 (London) or 01483 451900 (Guildford). Alternatively, please fill in our contact form.

About the Author

Darci Martin

Trainee Solicitor