§ 3.33 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Hayman.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 47 [Regulation of health care and associated professions]:
§ Lord Clement-Jones moved Amendment No. 194:
§ Page 38, line 14, after ("Council") insert ("within the period of one year from the coming into force of this section").
§ The noble Lord said: In moving this amendment, perhaps I may say first what a pleasure it is to debate parts of this Bill in daylight. I thank the usual channels for that. We have now come to one of the most crucial parts of the Bill and it is good to be considering it at a time that will allow a considerable number of members of professions relating to healthcare to watch our proceedings with interest.
The effect of the amendment would be to ensure that the considerable powers of Clause 47 will be exercisable for only a single year. We on these Benches said at Second Reading that this so-called Henry VIIIth clause went far too far. As Members of the Committee will know, we were supported in that view by the Select Committee on Delegated Powers and Deregulation, which stated:
Considerable concern has been expressed about the width of this power, and its effect on the principle of professional self-regulation. The Committee understands this concern. Orders may make changes to any aspect of professional regulation".
That report was extremely balanced. It did not damn the whole of Clause 47. The Select Committee understood the need for flexibility but recognised that, as currently framed, the clause goes far too far. We have received representations on that point as, I am sure, have other Members of the Committee. Our amendment is designed to put a finite limit on the Government's ability to use the clause while it is of the breadth currently drafted.
§ At this stage, Amendment No. 194 is essentially a probing amendment to ascertain whether the Government will accede to the request of the professions and their regulatory bodies to build in the safeguards that we and they believe to be essential. Many of those safeguards are subject to the amendments which stand in the name of the noble Lord, Lord Walton of Detchant—I refer to Amendments Nos. 202 to 204—and to our own later amendments. The protections are sought by all those professions which are currently regulated and include such important matters as provisions relating to lay representation; consent and proper consultation over rule changes; the transfer of functions to other bodies; the removal of Privy Council jurisdiction and, last but certainly not least, the whole question of protection of common titles.
We understand the desires of all parties to have a flexible framework, but that must not be at the expense of allowing self-regulation to give way to government regulation. The Minister said at Second Reading:
This power is not about dismantling self-regulation. We share the common aspiration to strengthen, not weaken, that self-regulation".—[Official Report, 9/2/99; col. 1121
I very much hope that the Minister can indicate a certain flexibility in this clause. We very much look forward to her response. I beg to move.
§ Baroness Hayman
I am grateful to the noble Lord, Lord Clement-Jones, for the way in which he moved the amendment and for making clear the fact that he is not totally wedded to a time frame of one year, but rather wanted to debate some of the more general issues. With the best will in the world, given the scale of the task in front of us and what needs to be done, allowing only one year for such an order-making power would be unrealistic. It is perhaps worth looking at why it would be unrealistic and considering the motivation for including an order-making power in the Bill in the first place. There were two reasons. First, there is an enormous backlog of desirable changes to be made to the legislation governing professional self-regulation. The replacement of legislation for the professions allied to medicine will require a substantial order of a similar size to the present Professions Supplementary to Medicine Act 1960. The professions have been pressing for that for some time, as the noble Lord and the Committee are aware.
We also want to replace the nurses, midwives and health visitors legislation and have recently published the review and the Government's response to it. Desirable changes for dentists, opticians and pharmacists are already well developed. There is also the challenge posed for us by professions which are not at present regulated by statute. The Government intend 1803 in time that the power can be used to introduce new regulatory schemes for such professional groups as psychologists or counsellors. A great number of professions linked to medicine are looking at ways of strengthening public protection through their systems of self-regulation.
There is a large quantum of work. What has also been clear from the debates in Committee is the desire that, in doing this work through secondary legislation, we should not curtail proper debate and discussion on these important issues. That means that we would not want to see anything rushed through without sufficient time to consult properly and fully with the professions concerned and with other interests. We shall come to specific amendments about them later. We want to work in partnership with the professions and thus ensure that we have enough time to develop the framework that is most appropriate for all the groups which might be affected or might wish to be considered. We must have time to ensure that the public is afforded the protection for which this clause is primarily designed.
Prior to the making of an order under Clause 47, we intend that there will be full consultation with the profession concerned and other interested groups; for example, patient groups, the Welsh and Northern Ireland Assemblies and the Scottish Parliament. We anticipate that the professional and regulatory bodies will wish to consult their members. Once an order has been drafted the draft must be published at least three months in advance of the draft order being laid before Parliament. Consultation on the draft order must be carried out. All this takes time.
Even if it were possible to clear just the current backlog of desirable proposals within the next few years, time-limiting the power would not be desirable. That is because this power is not designed as a quick fix to deal with problems built up over the past few years. The modernisation of the statutory regulatory bodies is an on-going process. Clause 47 and Schedule 3 provide a way of ensuring that the process of updating legislation can be more responsive to changing expectations of the professions and the public. For example, the GMC's proposals for revalidation, which, I believe, have been met with universal approval, will take at least two years to develop and implement. It may be some time before it is clear whether any changes to the law are necessary to underpin that.
I understand the motivation behind this amendment and assure the Committee that we have built in a system of appropriate checks and balances. I hope that we have taken into account the spirit of the comments of the Delegated Powers and Deregulation Committee which undertook, as the noble Lord pointed out, particular consideration of this issue. The committee recognised that the problem was,striking the right balance to protect the interests of all concerned bodies",rather than saying that an order-making power was not the appropriate way to tackle this task. That committee recognised that we had already built in a number of important procedural safeguards. It also suggested that the House consider two further safeguards: a requirement for the Minister, when laying a draft order, 1804 also to lay before Parliament a summary of representations received, showing in particular whether the professional body affected by the draft order had, first, been consulted, and what was the result of that consultation; secondly had agreed the provisions in the order; and, thirdly, if not, the reasons for making the order without the consent of the professions concerned. Its second recommendation was that the Bill might be amended to include a statement of the criteria against which the Minister could act in the absence of agreement with the professional body or bodies concerned—that is to say,for the protection of the public and for the better development of the profession".The Government accept these recommendations in principle and will look to bring forward appropriate amendments.
I hope that the Committee will agree that to impose a cut-off point after which the order-making power could not be used would therefore severely damage its usefulness in allowing the professions to develop and in allowing the Government to discharge their duty of protecting the public. It is, I believe, significant that the delegated powers committee did not advise the House that the power was drawn inappropriately wide, or that it should be time-limited. In accepting the committee's recommendations, I believe that we have now struck the right balance in terms of procedural safeguards and I hope that the noble Lord is reassured and will withdraw his amendment.
§ Lord Skelmersdale
Before the noble Lord withdraws his amendment, I am absolutely delighted that the Government have taken cognisance of what was said by the committee on delegated powers. I am sure that the Committee will agree with that. I also go along with 99 per cent. of what the noble Baroness has just said. However, I understood her to say that the Bill gives power to regulate a profession for the first time by statutory instrument. Can she tell me where in the Bill that is to be found? I find that very undesirable indeed. For example, acupuncturists are in the queue for regulation. It is perfectly acceptable to alter the primary regulation by statutory instrument, with the safeguards that the noble Baroness has just agreed; but I do not find it acceptable to regulate in the first instance by a piece of legislation which cannot be amended by Parliament. I would be very firm on having the first regulation by the Bill.
§ Baroness Hayman
I am grateful to the noble Lord. As I understand it, Clause 47(3)(b) envisages the possibility of regulation for the first time. That would be in two possible circumstances. It might well be that a profession joins a successor body of the CPSM. At the moment it is possible, by secondary legislation, for a new profession to be regulated for the first time. It has been done with the art therapists recently. There are now three applications to the Privy Council including one from clinical scientists. It would not be a new provision for a profession to be regulated for the first time by secondary legislation. The noble Lord is right for it to be made transparent that it is inherent within the powers of the Bill, as drafted.
§ 3.45 p.m.
§ Baroness Carnegy of Lour
Can the Minister say how Clause 47 and the Scottish legislation interact? She has the noble Lord, Lord Macdonald, sitting beside her so he may be able to help. I hope that I am asking the question at the right moment. It is a little difficult for me to judge whether it would be more appropriate to do so in connection with another amendment. The British Medical Association is extremely anxious that the General Medical Council should remain a United Kingdom-wide body and that it should not have a separate entity for Scotland. This matter is causing great anxiety for that body.
The Scotland Act establishes that the regulation of the profession is included in Schedule 5 of that legislation. It states that it is a reserved matter to the United Kingdom Parliament. The regulation of the professions can only be changed by order agreed by both Houses of the Westminster Parliament. The BMA is anxious whether Clause 47 and Schedule 3, about which the noble Baroness has just been speaking, clash in any way with that provision or alter it. Can the noble Baroness say whether the GMC is secure in believing that its arrangements can only be altered by the Westminster Parliament? In other words, can the Scottish parliament separate the General Medical Council even if Westminster did not want to?
§ Baroness Hayman
Perhaps my noble friend will give further details on that when we deal with some of the Scottish issues. We have always made it clear that devolution will not undermine the principle of a UK-wide National Health Service and will ensure consistently high standards throughout the United Kingdom. The regulation of the health profession will remain, as now, a matter for the UK Parliament. It is not being devolved to either the Scottish Parliament or the National Assembly for Wales. As regards existing professions, there is no doubt and no uncertainty about that. It is a reserved matter.
I should perhaps flag-up to the House the fact that there is a complication as regards a new profession that might join those currently under the CPSM. Because the transfer of functions deals with the professions as regulated at the moment, in order to have UK-wide regulation for a new profession, not a medical profession such as those already regulated, there would have to he a specific decision by the Scottish Parliament so to do.
That is my understanding—I am sure I shall be corrected if I am wrong—about a new profession which is to be regulated for the first time, whose regulation is not already covered within the provisions of the Scotland Act. In relation to the basics of self-regulation for existing professionals, that is a reserved UK matter.
§ Baroness McFarlane of Llandaff
Perhaps I may return to the force of the order-making powers. Will the Minister give us an assurance that those bodies whose 1806 regulatory powers are established under an order will have the same protection of their regulatory function as those professions which appear on the face of the Bill?
§ Baroness Hayman
We shall deal with some of those issues at a later point. It is our intention, when we talk about replacement bodies for perhaps the CPSM, and nurses, midwives and health visitors and therefore the UKCC, that they should have the same protection.
§ Lord Clement-Jones
I thank the Minister for the generous spirit in which she accepted the recommendations of the deregulation committee. I take that as an appetising hors-d'oeuvre to our debate today, though we are looking perhaps for a three course meal in the course of this Committee stage. There are many other aspects to consider but that is an excellent start. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Page 38, line 14, at end insert—
("(za)regulating and modifying the regulation of any profession to which subsection (IA) applies.").
§ The noble Lord said: In moving this amendment, I will also be speaking to the other amendments standing in my name.
§ I have an interest to declare as President of the Society of Chiropodists & Podiatrists: not a financial interest, but one founded on my admiration of the society's undeviating commitment to high professional standards and its genuine respect for the founding principles of the NHS.
§ My noble friend will recall that, at Second Reading, I raised with her the society's concerns that the Bill makes no specific mention of protection of title or of any definition of the future regulatory regime. Hence my amendments. Their purpose is to seek firm assurances on the two issues, either in the Minister's reply to this debate or subsequently by letter, so that the society can decide whether to return to these important issues at the Report stage. The society speaks representatively of state registered chiropodists in wholeheartedly supporting the Government's stated aim of strengthening self-regulation to protect the public. Its principal concern is whether this legislation will achieve that end for chiropody.
§ At present, chiropodists are regulated by the Chiropodists Board, under the Professions Supplementary to Medicine Act 1960. The board's chairman and the majority of its members are state registered chiropodists elected by their peers. This is what the society means by self-regulation; namely, that a majority of the regulatory body's members are of the same profession. Doctors, dentists, pharmacists, nurses, osteopaths and chiropractors have this form of self-regulation and, under the Bill's proposals, it appears they will continue to do so.
§ Yet for the professions supplementary to medicine, including chiropodists, the Government appear to be proposing to abolish the individual boards and to create 1807 a generic council, on which each profession would have only one or two representatives. The individual professional boards appear set to be replaced by merely advisory bodies and the Society of Chiropodists and Podiatrists is concerned that self-regulation, properly so-called, would then cease to exist. In the society's view this would not provide the protection for the public to which the Government are committed and on which Parliament should insist.
§ The aims of my amendments are twofold. First, they would have the effect of separating chiropody from the other professions supplementary to medicine and aligning it with doctors, dentists, pharmacists, nurses, osteopaths and chiropractors, with the advantage, as it appears, of retaining for the profession a self-regulating board with a majority of state registered chiropodists. And secondly, the amendments would ensure protection of title for "chiropodists" and "podiatrists".
§ The society believes that both self-regulation and protection of title are essential safeguards in protecting the public. At present, the Chiropodists Board has the power to decide fitness to practise; to determine educational standards and entry to the profession; and to adjudicate all professional disciplinary matters. For the profession of chiropody/podiatry to lose that power would not be in the public interest and I trust we shall now be assured that it will retain that power.
§ State registered chiropodists have the right to diagnose and treat patients independently of medical practitioners. They are able to carry out invasive bone surgery, such as bunion surgery, and to use local anaesthetics and other prescription-only medicines. They also provide special clinics for diabetes, a condition which afflicts about 3 per cent. of the adult population. As many of your Lordships will know, preventive health care of this kind can avoid serious conditions which may result in amputation of a leg. Indeed some research carried out in Manchester, of which I heard recently when performing the official opening of Manchester's new Foot Hospital, showed that amputations increased by 50 per cent. in the absence of timely intervention and appropriate treatment. What could more starkly emphasise the crucial need, in the public interest, for professionals with such responsibilities to be effectively regulated?
§ It is important also, if the public are to be properly protected from malpractice, that the professional titles "chiropodist" and "podiatrist" are protected. At present, an individual who is unqualified can establish a private chiropody/podiatry practice; and in fact a registrant who is struck off the register can continue to practise and to use the titles "chiropodist" and "podiatrist". European Union regulations require those who treat horses' hooves to be properly qualified. Speaking as a former member for six years of the Council of the Royal College of Veterinary Surgeons, representing the Privy Council, and now as an Honorary Associate of the British Veterinary Association, I rejoice that this is so. Surely the same regulations should, however, apply to those who care for human feet!
§ Some people in Whitehall seem to think that, because there is no evidence of negligence cases against non-state registered practitioners, the public is not at 1808 risk. But the reason for this is that there is no statutory regulation of the private sector and thus claims made against non-state registered practitioners are not in the public domain.
§ In this regard I have received a letter from Mrs. Sue Sharpe, the Director of Professional Standards of the Royal Pharmaceutical Society of Great Britain, who is held in high regard on both sides of your Lordships' House. She writes in support of my amendments on the grounds that there can be considerable danger to patients in using non-state registered chiropodists. She tells me of a notice circulated to members of the Royal Pharmaceutical Society, advising them only to promote the services of state registered chiropodists. This provoked an outraged response from a non-state registered chiropodist who said that the Council for the Professions Supplementary to Medicine had no control over the private sector and no business to interfere. What some in the private sector clearly want is carte blanche: more and more deregulation which, in terms of the public interest, makes about as much sense as deregulating Big Ben.
Referring to the vital importance to diabetics of timely and appropriate treatment, Mrs. Sharpe states:
This outraged reaction to our advice makes the case for your amendments when you consider the possible consequence of services for diabetics being provided by individuals who may have no insurance and no qualifications".
She goes on to say that effective regulation of the health professions is an important matter of public concern and, if the Government were to propose a fundamental change by transferring to others any of the core duties of regulating the principal professions from those presently charged by statute with these duties, then it should be a matter for primary legislation. With the order-making power conferred by the Bill in place, she argues, primary legislation need not be lengthy and detailed: a short Bill would suffice.
Mrs. Sharpe concludes:
We are all at some stage dependent on the quality of services provided by the health professions and to ensure that those who regulate them properly represent our interests. That is why a change of such magnitude as transferring core functions to another body should be reserved to statute".
That is eloquent testimony to the need for the firm assurance I am seeking that there will be a minimum common legal qualification for a chiropodist/podiatrist and that the use of titles will be limited accordingly. The non-state registered sector could be integrated into regulation through a process of "grandfathering" and they would, I understand, support this move.
§ I welcome the Government's decision to deal with the need to reform legislation which was enacted nearly 40 years ago and is now thoroughly out of date. Some of your Lordships may recall that I introduced a Private Member's Bill in 1994 to provide effective regulation for chiropodists. My promotion of that Bill explains why I am anxious now to achieve total clarity about what is being proposed in terms both of protection of title and the future regulatory regime.
§ State registered chiropodists are not seeking aggrandisement for their profession. On the contrary their aim, for which I know your Lordships' House will 1809 honour them, is to protect professional standards and the public interest. I know my noble friend will want to reply to the amendments both positively and helpfully. I beg to move.
§ 4 p.m.
§ Lord Astor of Hever
I rise to support Amendment No. 200. The Government's proposals for the future regulation of chiropodists and podiatrists and the other professions supplementary to medicine are not clear on the face of the Bill. What is clear is that the present Chiropodists' Board, set up under the Professions Supplementary to Medicines Act 1960, would be abolished. It appears that it would be replaced by a generic council of 42 members with a maximum of only two chiropodists as members. This would mean the end of self-regulation for the profession.
I support the aims of the amendment of the noble Lord, Lord Morris of Manchester. I also believe that the chiropody profession should be grouped with doctors, dentists, pharmacists, nurses, osteopaths and chiropractors, who appear to be set to continue with self-regulating boards consisting of a majority of members from their own profession.
I also believe that protection of title for chiropodists and podiatrists is vital to ensure that patients are properly protected from unqualified practitioners. I want to be certain, as I am sure do all noble Lords, that those who treat our feet, including carrying out surgery, are properly qualified to do so.
§ Lord Clement-Jones
I very much support the amendment moved by the noble Lord, Lord Morris of Manchester, and my noble friend Lady Sharp of Guildford. The Chiropodists' Board under the existing CPSM is currently the effective regulatory body for chiropodists and podiatrists. It appears, however, that the Government are acting on the recommendations of the 1996 J M Consulting report which recommended the creation of a new umbrella council with stronger powers, but the abolition of those individual boards of the professions described in the Act as supplementary to medicine, though I know the professions would prefer to be known as the professions allied to medicine.
Looking at the original J. M. Consulting report, I believe that it was rather dismissive of the need for those individual separate boards. Most of the professions allied to medicine appear, however, to be able to live with that new regime. The chiropodists and podiatrists are not, and they do not see why they should have to be subsumed against their wishes, in a wider council when professions such as osteopaths and chiropractors do not. What makes their position so very different?
As the noble Lord, Lord Morris, and the noble Viscount, Lord Astor, have explained, chiropodists and podiatrists are unique. They have the right to do certain things that no other profession allied to medicine does.
We also support the protection of the titles of chiropodist and podiatrist, but we believe that there are issues here relating to a great many other professions 1810 allied to medicine. I shall keep my remarks on that particular matter to a later amendment. I urge the Committee to support these amendments.
§ Lord Milverton
I rise to support the amendments of the noble Lord, Lord Morris. They are sound in principle in every way. I hope that the Government will be able to accept them.
§ Baroness Fookes
There was in my former constituency a school of podiatry and I had an opportunity to talk to the head of that school on many occasions. I was frankly amazed at the type of work that was undertaken by podiatrists, which went far beyond my superficial view that it was a matter of cutting toe-nails or hard skin from the feet of ladies who wore high heels. It is an extremely important profession and it deserves to be treated as a profession in its own right.
I am particularly concerned that there should be the ability to protect the title of chiropodist or podiatrist. I still have difficulties with "podiatrist", but I know that the profession itself prefers the term. Whichever title is used, it is very important that it should be protected. The work they do relating to foot problems is far too important to allow unqualified or insufficiently qualified people to tackle it.
§ Lord Colwyn
At an earlier stage my noble friend Lady Gardner explained the difference between dentists and dental surgeons. I wonder if the noble Lord, Lord Morris, could explain to me the difference between these two categories of people who look after feet.
§ Lord Morris of Manchester
Some people use the terms interchangeably. The society changed its name in order to make it clear that. whether people speak of "chiropodist" or "podiatrist" they are talking about fully qualified members of the same wider profession which the two titles describe.
To some extent any confusion is caused by people in the private sector who give the impression that there is something far more prestigious in describing themselves as one rather than the other. I hope the noble Lord will have no further difficulties.
The society, by changing its title, simply wanted to remove any doubt that whether the term "chiropodist" or "podiatrist" is used it both represents and speaks for them.
§ Lord Walton of Detchant
With respect to what the noble Lord, Lord Morris, has just said, is it not the case that training in chiropody is a primary qualification which allows a registered chiropodist to undertake relatively minor procedures but that those trained in podiatry undertake an extended period of training, often in collaboration with surgeons and medical practitioners, which enables them to carry out more extensive minor surgery on the feet under local anaesthesia?
§ Lord Morris of Manchester
Of course, I have great respect for my good and noble friend Lord Walton. It 1811 arises from our work together in the service of the Muscular Dystrophy Group of Great Britain. All of us respect his view.
As I explained to the noble Lord, Lord Colwyn, the society wanted to make it absolutely clear that it comprises fully qualified members of the same wider profession which the two titles describe. I am sure everyone here is totally appalled at the prospect that an unqualified and uninsured practitioner could, in some circumstances, advise a diabetic. That must be a very serious matter. Quite clearly, it is not in the public interest.
§ Baroness Hayman
I am grateful to my noble friend for allowing the Committee to debate these issues and to recognise the important role in healthcare played by both chiropodists and podiatrists. Like the noble Baroness, Lady Fookes, I had some relationship with a school of podiatry. I, too, recognise how wide and highly skilled the role of qualified podiatrists is today and the areas of healthcare in which they make such an important contribution. However, I have to tell Members of the Committee that that is also true of some of the other professions allied to medicine who also take enormous responsibilities for patient care. That is part, perhaps, of the rejuggling of boundaries between professionals that has taken place as training has developed over the years.
On the issue regarding the protection of title for chiropodists and podiatrists to which we have returned several times, perhaps I should point out that that is equally strongly felt by physiotherapists, who also have the choice of title of physical therapist, which is the international title, and by other groups of professions allied to medicine. Indeed, one of the main reasons for the review of the Professions Supplementary to Medicine Act was the very strong recommendation that it does not give adequate protection of title for the professions supplementary to medicine; it is inadequate in that respect. We need new legislation which will give patients better protection. That is probably one of the strongest reasons for the review.
Some confusion has arisen as regards the different stages of the process in terms of debating the specific issues relating to chiropodists and how they might be treated under secondary legislation which may be brought forward after the order-making power in the Bill is enacted. We shall deal later with the protection of core functions to which my noble friend alluded. We have made it very clear that we want to protect those core functions of professional regulatory bodies.
What we are doing today in this Bill represents the first stage in quite a long process, as I suggested earlier. The order-making power will provide the mechanism by which changes can be made to legislation governing professional self-regulation, including that covering the professions supplementary to medicine. However, it does not deal in detail with the proposals regarding what those changes should be. I can quite understand that chiropodists will want to know how they will be affected by the changes that we wish to make to the Professions Supplementary to Medicine Act. That is why we have made it quite clear that we are committed 1812 to consulting the individual professions concerned in developing any proposals to replace the CPSM, as well as consulting them on the draft order itself.
I was pleased to have the opportunity to meet members of the Society of Chiropodists and Podiatrists last week in order to discuss the issues of importance to them. I look forward to further discussions with the society on the detailed proposals that come forward in due course. However, I am certain that the other professions supplementary to medicine equally have individual issues with which they are concerned, so I am not sure that it is appropriate to have that debate at this stage of the Bill's proceedings. The examples given during our short debate today are perhaps not totally apposite. Both the osteopaths and the chiropractors have their own boards because they have their own legislation. One of their reasons for pursuing individual legislation was that when they were looking for self-regulation they did not think that the PSM Act gave them sufficient protection. However, it is not that we are treating chiropodists differently from them; indeed, we are certainly not suggesting treating them differently from all the range of professions governed by the Act at present. These include dieticians, occupational therapists, physiotherapists, medical laboratory scientific officers, radiographers, and others. There is certainly no suggestion that we will be treating chiropodists less well than them. Nor, I have to say, are nurses totally separately regulated under the Nurses, Midwives and Health Visitors Act. The UKCC is a joint regulatory body for nurses, midwives and health visitors. Some of these issues about how individual professions within joint working are properly protected are common in that respect.
I understand the chiropodists' concerns about retaining professional independence. We recognise that they wish, correctly, to retain a distinctive voice in the regulation of their own profession. There is widespread agreement within that context that there are important benefits for patients and for the professions to be gained from reforming the PSM Act to create a better, multi-professional legislative framework, based on collaboration and common aims and values. That was one of the fundamental recommendations of the review of the Act. The review recommended a new and stronger council which would be able to influence and co-ordinate the regulation of individual professions.
A modernised and multi-professional structure for the professions supplementary to medicine will build on the traditions of many years of partnership working under the existing legislation. Benefits are obtained from common values and approaches and the formulation of cross-professional policies. A reformed body will provide a stronger voice for these professions—the chiropodists, podiatrists, dieticians, occupational therapists, orthoptists, physiotherapists, prosthetists and orthetists, arts therapists, medical laboratory scientific officers and radiographers. Some of those groups are very small professions for which, I suggest, separate and individual regulatory bodies would not be a sensible way forward. I have made it clear that 1813 it is our intention to repeal the PSM Act and replace it with new legislation to regulate these professions. That will be a priority for the use of the order-making power.
As I said, the details of the replacement framework are a matter for the future. However, I understand the concerns of chiropodists that the distinctive contribution of each profession, within a joint regulatory framework, should be properly acknowledged. The successor body to the CPSM will need to be sufficiently flexible to ensure that uni-professional input is preserved where appropriate. It will be one of our key aims in working with the professions to develop the proposals to ensure that future arrangements strike the right balance in that respect. I can assure my noble friend and others who have spoken that we will take into account the views that have been expressed in developing proposals upon which we shall be consulting. I believe it is possible to ensure that there are safeguards for the distinctive voices of all the individual professions. In some areas, such as fitness to practise it is absolutely appropriate that they should be in the majority when considering cases which come before them. I believe that within the new structure we can find an appropriate balance.
On the question of protection of title, I am in total agreement with my noble friend that the protection afforded at present is completely insufficient. As he said, the title currently protected is "state registered chiropodist". We can ensure within the health service that only state registered chiropodists are employed. However, we do that by direction. That is not the same as the powers that will be available for the professions themselves after new legislation is introduced for the professions supplementary to medicine. At the moment any individual can set up in practice and call himself a chiropodist. My noble friend is quite right to point out that that has dangers for the public. It is something we are anxious to change. I reassure him that the order-making power in the Bill will enable us to do that. Paragraph 1(d) of Schedule 3 to the Bill, referring to the,privileges of members admitted to practice",is the relevant provision. It is rather sad that we did not make it clearer in the Explanatory Notes that this measure concerns protection of title, as I know that is an important issue for all the professions. The draftsmen assure me that this is the right way to deal with the matter. However, we could have pointed out in the Explanatory Notes that,privileges of members admitted to practice",covers this important issue as it is fundamental to the protection of patients and it is one of the key reasons for going ahead with the plans that we have.
I suggest that a separate professional regulatory body for chiropodists alone is not a sensible way forward given the history of multi-professional co-operation within the ambit of the professions supplementary to medicine. I hope that when we bring forward proposals we can do so in a way that reassures chiropodists and podiatrists—and indeed the other professional groups within the ambit of these provisions—that they will have appropriate input into the areas which are of concern to 1814 them. I hope that in the light of those assurances my noble friend will not feel the need to press these amendments further.
§ Lord Clement-Jones
Without wishing to pre-empt the reply of the noble Lord, Lord Morris of Manchester, I hope that I may express a view to the Minister. I believe there will be considerable disappointment at her comments, but on the other hand strands of what she said may well be helpful. The Minister talked about the issue of safeguards and fitness to practise being kept firmly within a profession's ambit. Can she say a little more about the advisory boards as they are a considerable bone of contention, as she knows? In the J. M. Consulting report they were regarded as an optional extra. However, many professions, not just chiropodists and podiatrists, would regard them as being an important part of the new framework. Will the Minister elucidate further on that?
§ Baroness Hayman
I am not sure that I can because we do not have proposals to put forward at this time for an order to replace the current legislation. It has been said often during the course of our debates that we should listen to the professions on these issues. If I were to pre-empt that discussion by saying now what the rules of the advisory committees will be, I suggest that that would not be in the spirit of the consultation we are trying to take forward. We must ensure that the overall board—which is multi-professional, and can gain strength from that—recognises that there are some issues where the distinctive voice of an individual profession must be heard. We shall try to take that into account when framing proposals. However, I cannot tell the noble Lord what the proposals are because we have not framed them.
§ Lord Skelmersdale
In that case why does the Bill get rid of the 1960 Act at this moment? Why not make provisions by order so that we all know what is going on?
§ Baroness Hayman
One of the safeguards is that we cannot abolish a regulatory body except by primary legislation. That is one of the safeguards written into the Bill. We are in something of a Catch-22 situation here. If we did not take the relevant powers in this piece of primary legislation, we would leave professions supplementary to medicine in exactly the same difficulty as they are in now of having to queue up for primary legislation before any change can be made to them. Because the defects of the system are so well established the Government know that they want to repeal that piece of legislation. A review was published in 1996 along with the then government's response to it. Therefore we thought it appropriate to state on the face of the Bill that we intended to do that so that everyone was aware that that was the way we were going forward. However, that shall not be effective until replacement legislation—in this case, secondary legislation—has been brought forward. Therefore we ensure that we do not set the 1815 position in tablets of stone for those who are furthest advanced in needing change, and not allow them the benefit of the order-making power.
§ Lord Clement-Jones
I hope I may probe a little further. I fully understand that consultations are taking place. However, I had understood that consultations were taking place on the basis of the Government's view of the J. M. Consulting report of 1996. I had assumed that the Government had said they liked its broad outlines. Surely the consultations concern precisely that framework. My questions to the Minister were set in the context of that framework. I asked whether or not there was the possibility of the Government moving further in the light of representations which have been made on the Bill, and those made before the Bill was published.
§ Baroness Hayman
The previous government responded to the J. M. Consulting report. What I have tried to say this afternoon is that in framing any proposals that this Government bring forward for the content of a new order to replace the Act, I personally shall ensure that the comments of the Committee this afternoon and the issues that it has highlighted, particularly concerning individual professions, will be taken on board. However, this is a sequential issue. First, there is the repeal of the Act, and there is the order-making power. Then there will be proposals to be consulted on with the regulatory body, the individual professions and with the wider public. Then we have to have a draft order that is consulted on. We are not at the stage of having definitive proposals to put before the Committee.
§ Lord Morris of Manchester
As I indicated in moving the amendment my purpose today was to secure total clarity as to the Government's intentions in regard both to protection of title and definition of the future regulatory regime they envisage. Certainly what my noble friend has said about protection of title will be welcomed. I also sought firm assurances that would satisfy the Society of Chiropodists and Podiatrists that any change to current arrangements for self-regulation would be to strengthen rather than to weaken them. I shall be consulting the society urgently about the outcome of today's debate so that it can consider what further action it may wish to take in the interests both of its members and the public interest. It is on that basis that I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 196 and 197 not moved.]
§ 4.30 p.m.
§ Lord Clement-Jones moved Amendment No. 198:
§ Page 38, line 28, at end insert ("including specifically nursing auxiliaries as defined in subsection (6)").
§ The noble Lord said: This is a probing amendment. The amendment seeks to include within those professions related to health and medicine healthcare assistants and nursing auxiliaries. The amendment is a response to the fact that much of healthcare at ward level is in the hands of healthcare assistants or nursing 1816 auxiliaries. At present the profession is completely unregulated. Although it is very difficult to make comparisons between now and 10 years ago, it seems from the figures that in some regions there has been some growth in the use of nursing auxiliaries. There have been abuses and problems as a result of that profession being unregulated.
A recent J. M. Consulting report on the regulation of nurses, midwives and health visitors took a good deal of evidence on the issue of nursing and midwife discipline and also responded to the concerns being expressed about the lack of regulation of healthcare assistants. The report states:
Those who responded to our consultation have expressed a deep concern about the threat to public protection posed by some unregulated support workers who, for example: obtain posts by deception or without adequate check on their suitability; or work unsupervised with vulnerable patient groups; or work in high-risk situations with no training".
We recommend that the government establishes a short review of this area with the aim of introducing a practical scheme of regulation".
In a recent Starred Question the Minister assured me that the matter was under review but the second half was, in a sense, missing. There was no undertaking that at the end of the process the idea was to introduce a practical scheme of regulation. It would be very helpful if the Minister could indicate her intentions at this stage.
§ The RCN has called over a number of years for the regulation of healthcare assistants and certainly did so in its response to that review of nurse and midwife discipline. A recent survey of nurses showed 94 per cent. of respondents calling for regulation. The most notorious case involving healthcare assistants was that of Yuen How Choy, which was reported in 1996. In that case a former mental health nurse and former rapist was struck off the nursing register but could still be employed as a care assistant in a hospital. That may be a hard case but it seems to demonstrate precisely why regulation is needed in these circumstances. I beg to move.
I rise to support the noble Lord, Lord Clement-Jones, in his amendment. The points he has made are very persuasive and ones with which I completely agree. He is right to draw attention to the issue, which is of considerable importance. If I have a small criticism it is of the wording of the amendment. I would have preferred to see specified "healthcare assistants" and not "nursing auxiliaries", but the substantive point is exactly the same.
As the noble Lord said, healthcare assistants or nursing auxiliaries play an increasingly important role in the delivery of patient care, both in hospitals and in the wider community. The registration of healthcare assistants would achieve two main purposes. It would offer a means of sifting out bad apples who presently move from one part of the country to another and repeat their misdemeanours undetected and often with impunity. It would also lift the standing of the profession by providing a means of self-advancement through a recognised system of professional 1817 qualifications. In addition, the Royal College of Nursing has referred to the desirability of matching the regulatory framework with the lines of accountability that operate in practice. Healthcare assistants are very often supervised by nurses and there is a good argument for shared and complementary codes of conduct and disciplinary systems.
There is an urgent need to address this matter quickly. I wonder how many members of the public are aware that healthcare assistants, in hospitals or the uniformed carers in an old people's home, are subject to no statutory regulation or minimum standard of proficiency. The increasing dependence of hospitals on their auxiliary staff and public concern over cases of abuse in homes make it all the more essential that we provide a means of raising standards of care across the board. It is part of the quality agenda and I hope that the Minister will be sympathetic, if not to the amendment then to the central point at issue.
§ Baroness McFarlane of Llandaff
I support the two amendments in this group, if only in intent because there is a question of terminology in terms of "healthcare assistants" being substituted for "nursing auxiliaries". Without wanting to enter into a sociological discussion of what is a profession, it could be questioned whether nursing auxiliaries are part of a profession.
The principle of these amendments is exceedingly important. Not only are healthcare assistants employed in hospitals where they are theoretically supervised by nurses, although often by default they are not, but they are also employed to give intimate care in patients' own homes without any direct supervision. These are important amendments.
§ Baroness Hayman
I hope that I will be able to respond, as the noble Baroness, Lady McFarlane, has suggested, to the important substance behind the amendments. My understanding is that as currently drafted the order-making powers are quite wide enough to encompass any action needed to regulate these groups. Therefore, this specific amendment is not necessary to the Bill should that decision be taken. I respect the opportunity that has been taken to raise the issue of the role of nursing auxiliaries or healthcare assistants, however we use the terminology. I was particularly grateful for the way in which the noble Earl, Lord Howe, pointed out that this issue is concerned with lifting standards and respect for the profession as a whole as well as dealing with the particular problem of abuse, which occurs only in a minority of cases.
Nursing auxiliaries and healthcare assistants in the NHS play a very important role, which may not feature prominently in some of the coverage of the health service. They perform a significant number of tasks that in the past would have been considered specifically nursing tasks. They are intimately involved with patients and those who they care for, and the public are entitled to an assurance that only suitably trained and appropriate individuals are employed in positions where there is such contact with patients.
1818 I recognise the concerns that have been expressed about the development of the roles undertaken by nursing auxiliaries. These concerns have been raised in the past in the context of the need for regulation of support workers. As the noble Lord, Lord Clement-Jones, said, this issue was discussed in the review of the Nurses, Midwives and Health Visitors Act and the conclusion was reached that full-blown self-regulation was probably not the answer. The review recommended a short review of the position regarding support workers. It was recommended that the review should advise on codes of conduct for these workers, standards of training for those groups for which it is appropriate, the establishment of a list of suitably qualified support workers and the enforcement of those recommendations. We have announced our acceptance of that recommendation for such a review and we will go ahead with it.
I think the noble Lord, Lord Clement-Jones, is again tempting me to pre-empt the results of the review by saying what its conclusions would be. I think we should approach matters in a straightforward way and undertake the review.
We have already announced our plans to regulate social care staff in the social services White Paper, Modernising Social Services, by setting up a statutory general social care council. The driving force behind the new council is to increase the protection of service users, their carers and the general public. Any review of support workers within the health service will have regard to the decisions that the Government have already taken in relation to care assistants in the social care field. There is a great blurring of the edges in terms of where people receive treatment. It is important that we make sure that there is proper regulation across the board.
On that basis, and with the reassurance that the powers included in paragraph 11(2)(b) of Schedule 3 would be wide enough to enable legislation to take place on the regulation of these groups should that be considered appropriate, I hope that the noble Lord will consider that the amendment is unnecessary and will feel able to withdraw it.
§ Lord Clement-Jones
I thank the Minister for that helpful reply. Before responding, perhaps I may put one further question to her. So far as professional or occupational regulation is concerned, there are many other considerations. Clearly, much is happening at the department. What is the timescale for the review that is currently taking place? Will it be completed in a short space of time? The Minister said that it could take two years to settle the current rules of the GMC. This matter is rather more urgent.
§ Baroness Hayman
I do not have my Civil Service lexicon to tell me whether I should say, "shortly", "soon", or "before too long", and how those expressions translate into weeks or months. Perhaps I may write to the noble Lord and give him details of the timescale currently envisaged.
§ Lord Clement-Jones
I always think that "presently" is a useful expression. I thank the Minister for that reply.
1819 I certainly did not mean to under-value the role of healthcare assistants. Indeed, I was one for a short period of time. I believe that they were then called orderlies. I am not sure what happened to that title. They perform valuable services. One of the roles of regulation is to enhance professional self-esteem, training and all the other good things about healthcare. One tends to believe that regulation performs as a yardstick for the worst cases. Again, I thank the Minister and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Clement-Jones moved Amendment No. 199:
Page 38, line 28, at end insert—
("( ) Orders under this section shall make provision for the regulation of the use of specific professional titles in relation to professions to which subsection (3)(a) above refers.").
§ The noble Lord said: We have had an interesting debate about protection of title. However, I wish to "ratchet up" the specificity of the Minister's reply.
§ Paragraph(1)(d) of Schedule 3 has been drawn to our attention. It relates to the privileges of members admitted to practice. It allows an order to be made which covers protection of title. But what protection of title are we talking about? Are we talking about protection of title as regards "registered nurse" or "registered physiotherapist"; or are we talking about protection of common title? Or are we talking about protecting the title "nurse", or "physiotherapist", so that the magic word "registered" does not have to be used in front of the title? This is important to a number of the professions. Perhaps the Minister will comment. We have heard of the Government's welcome intention to include in the orders the question of protection of title. That is very much the "quo" for the "quid" that the Government are proposing in terms of changing the regulatory structure. I beg to move.
§ 4.45 p.m.
§ Lord Peston
It is difficult to know when to intervene in today's debates. I should declare an interest as an honorary member of the Royal Pharmaceutical Society—the word "honorary" being as it were, in italics, in the sense that no net benefits seem to flow from it in any form. I was not certain whether to intervene now or later in connection with the amendments tabled by the noble Lord, Lord Walton, which are inter-related.
The essential point is that protection of title is a restraint on trade. There is no avoiding that. Therefore, whether we are discussing nurses, doctors or anyone else, in the public interest it must be demonstrated that net benefits flow. Many of those supposed net benefits are set out in the amendments proposed by the noble Lord, Lord Walton, to which I shall speak.
I am convinced that there ought to be protection of title. In practice, the professions generate net benefits to our society despite the restraint on trade. However, as the noble Lord, Lord Clement-Jones, said (I do not know whether it is a "quid" for the "pro" or a "pro" for the "quid") there has to be a pay-off to society. That 1820 pay-off is concerned with the way in which the professions conduct themselves. I shall address that point in relation to the later amendments.
I hope that my noble friend the Minister will respond positively. I hope that she does not sell the pass and abandon the Government's responsibility for seeing in the final analysis that the public interest is protected. I stand second to no one in my support for the professions. But one of my main concerns is that they do not seem fully to recognise that there is a public interest here. The public cannot simply say, "Oh, yes, we trust you professionals from now to infinity and we do not need a reserve power." Whether my noble friend wishes to discuss the reserve power question now, which relates to the core function question, or whether she wishes to save it for her reply to the noble Lord, Lord Walton, is entirely a matter for her. I support the noble Lord, Lord Clement-Jones, in the desirability of protecting title. It tells consumers what they receive for the title in a properly regulated profession. That is fundamental. However, I hope that in being to some extent supportive of the noble Lord, Lord Clement-Jones, we can also then talk more generally of what we expect from the professions and where the Government stand in representing the public interest. My remarks are a start; I shall not give up on the point when it comes to the later amendments.
I wish to add my support for the amendment. The noble Lord, Lord Peston, is right to make the point about the need to show net benefits if there is to be protection of title. Presently, there is scope for considerable confusion in the minds of the general public, hence a risk to patients arising from the use of certain professional titles by unqualified individuals. That usage is perfectly legal. "Registered nurse" is a protected title. "Nurse" is not; "psychologist" is not; nor is "podiatrist". And "physiotherapist" is not protected. The Charted Society of Physiotherapy has pointed out to me that the common international title for the discipline, "physical therapist", is likewise unprotected. That represents a loophole in the law. Unless the ability exists to regulate the use of specific titles, vulnerable people will continue to be misled into thinking that they are being looked after by qualified professionals. I hope that the Minister will be receptive to the point.
§ Baroness McFarlane of Llandaff
I, too, support the amendment. There is considerable confusion in the mind of the public, particularly about the title "nurse". Very often healthcare assistants have the title "nurse" on their name badges. I have met members of the general public who are very confused about who is nursing them. They describe to me people in a chequer uniform and ask: "Are they registered nurses, or not?". For the general public it is very confusing.
§ Baroness Hayman
I am tempted to tell the noble Baroness of the male doctor who recently raised with me the issue of confusion in patients' minds. He said, "It was all so much easier in the past when all the men were doctors and all the women were nurses." Perhaps that is a road down which I should not be tempted.
1821 I agree with the importance that has been placed on the issue of the protection of the public which, after all, is the reason behind all that we are discussing with regard to self-regulation. Perhaps I may reassure my noble friend Lord Peston by saying that the reason why the Government wish to support and strengthen self-regulation is that we believe it is the most effective way of enhancing public protection, and not simply as an end in itself, if I can put it that way.
I can certainly understand the frustration, particularly of the professions supplementary to medicine, as the Act of 1960 does not protect specific professional titles or provide protection of function, which is another way of ensuring the protection that the public would wish. It is three years since a review of the Act recommended that that problem be addressed. That is one of the reasons for the impatience in getting on with this Bill and the order-making power.
We believe that the protection of common title or function is fundamental to the protection of patients. I wish to reassure the Committee that the Government fully intend to ensure that appropriate provision is made in the replacement legislation in this regard for each of the professions concerned. As has been pointed out, individual professions have particular interest in it and particular interest in what is the appropriate term, whether it is both "chiropodist" and "podiatrist", both "physiotherapist" and "physical therapist". Once you start protecting three or four different titles for the same professional group, there is a danger that public clarity and understanding will not be enhanced. We must approach this on a sensible basis. We shall consult the professions on the proposals in due course.
Again, I want to stress the way in which the order-making power in Clause 47 and the words,privileges of members admitted to practice",in paragraph 1(d) of Schedule 3 are phrased. We believe that we have the legislative powers to do that.
On the issue of exactly which title is to be protected, I say to the noble Lord, Lord Clement-Jones, that we would certainly be looking to protect the common title for the professions allied to medicine. With regard to nurses, there has always been a difficulty in the past with the term "nurse", as the noble Baroness, Lady McFarlane, will be aware. If you protect the common title of "nurse", how does one deal with nursery nurses and veterinary nurses? I am not sure that we have found a perfect answer to that one. The issue is most important in the areas of the professions allied to medicine and there the common title will be the one that we shall be seeking to protect.
§ Lord Clement-Jones
I thank the Minister for that reply. In response to the noble Lord, Lord Peston, as a member of one of the most over-protected professions—I am a solicitor—I am conscious of the need to be aware that if there is protection it must be in the public interest. I believe in the case that we have made today. I am pleased by the Minister's reply, particularly as it applies 1822 to the professions allied to medicine. Her answer was quite specific about common title and not just requiring registration in every case.
I hope that the protection of the title "nurse" can be looked at further, perhaps in the context of the healthcare assistant agenda. It seems to me that the ideal time to regulate on the title "nurse" is when the occupation of healthcare assistant is regulated. That might be a useful break-point when the use of the word "nurse" could be clearly defined as someone belonging to the nursing profession. As a staging post, I welcome the Minister's comments and beg leave to withdraw the amendment.
§ Amendment, by leave, withdraw.
§ [Amendments Nos. 200 and 201 not moved.] Clause 47 agreed to.
§ 5 p.m.
§ Schedule 3 [Regulation of health care and associated professions]:
§ Lord Walton of Detchant moved Amendment No. 202:
§ Page 51, line 9, after ("may") insert (", subject to paragraphs 7 to 8A,").
§ The noble Lord said: In speaking to Amendment No. 202, tabled in my name and the names of my noble friend Lord Kilpatrick of Kincraig, the noble Baroness, Lady McFarlane of Llandaff, and the noble Baroness, Lady Emerton, I also wish to speak to Amendments Nos. 203, 204, 206 to 211, 213, 215, 216 and 217 as they are all closely interlinked. I shall try to explain that interlinking in a moment.
§ In speaking to these matters I am not just concerned with the interests of the General Medical Council but with the interests of all the eight self-regulatory bodies listed in the Bill, including the General Dental Council, the General Optical Council and others. Each of them is concerned about the present provisions of the Bill. If one were to apply the principle of reductio ad absurdam, it would be possible under the Bill, as drafted, to replace the present self-regulatory body by a small, government-appointed professional body. It would be possible to replace the GMC by a professional body of, say, four chief medical officers with no lay members. That is clearly a ridiculous idea which no one would contemplate. Everyone will be greatly reassured by the comments of the Minister earlier today.
§ We are concerned that the self-regulatory bodies have striven over the years to move towards the greater protection of the public, an issue to which the noble Lord, Lord Peston, referred. The noble and learned Lord, Lord Hailsham, has described professional self-regulation as one of the glories of a civilised society which nevertheless must take full account of lay opinion and lay concerns.
§ I became a member of the General Medical Council in 1971 and subsequently its president from 1982 to 1989. During that time the GMC moved rapidly towards bringing about a number of changes in its powers within the legislation, as it then allowed, in the greater interest and protection of the public. However, under the 1823 subsequent distinguished presidency of my successor, my noble friend Lord Kilpatrick, the number of lay members on the GMC concerned with the interests of the public was increased from II to 25, almost a quarter of the present membership of the council.
§ Even in my day, we began to recognise the crucial importance of the fact that the council had no powers over the issue of professional performance. It could deal effectively with doctors who were guilty of serious professional misconduct; it could deal effectively with doctors who were sick; but it had no powers to deal with doctors whose performance fell below a satisfactory level. In those days we began to look towards government to see if legislation could be introduced to deal with that particular issue. It took several years— I know that my noble friend Lord Kilpatrick will say more about this—before primary legislation under the Medical (Professional Performance) Act 1995 was introduced.
§ As the Committee will be aware and as the noble Baroness mentioned, quite recently the whole question of revalidation of professional performance of doctors in all disciplines, in all specialties and in all grades of work came under the ambit of the GMC. That will be a regular procedure together with the important point of the protection of the public, not least because of some concerns arising from recent notable cases that received a great deal of attention in the media.
§ The primary purpose of these amendments is to ensure that the order-making power under the Bill to modify regulation of the health professions is properly limited. As I say, the present regulatory bodies are all anxious to continue to develop effectively their ability to protect patients and to serve the public as well as they can within their power. Several of them had been waiting for amendments to the legislation concerning their powers for many years. To take but one example, the disciplinary legislation applying to pharmacists has been unchanged since 1954. The regulatory bodies and the professions recognise the substantial and arduous responsibilities conferred upon them. For many members of the public the quality of health services and of professional practice is among the most important of all issues affecting them. It is therefore of great importance that any proposal to change the responsibilities of bodies responsible for regulatory functions should be subject to the detailed scrutiny and debate of primary legislation. Fundamental change should not be implemented by secondary legislation.
§ The amendments which we have tabled ensure that the core functions of the present regulatory bodies may not he given to another body by an order made under Clause 47 of the Bill. Primary legislation would continue to be required, although such legislation could be very simple. Detailed provisions could be dealt with by order. We believe that this strikes the right balance between the use of primary legislation and secondary legislation.
§ In addition these amendments carry the intention that they will apply after the Nurses, Midwives and Health Visitors Act 1997 is repealed, as I understand is the Government's intention through the medium of the Bill.1824
§ The second main purpose of these amendments is to protect the role of the Privy Council. The Privy Council has a role in respect of all the professions, with the exception of the UKCC. That council's breadth of experience is valued by the professions as it provides a point for advice and informal consultation. As devolution progresses, a further benefit will become evident. The Privy Council will be able to ensure that proper weight is given to the views of the Scottish, Northern Irish and Welsh assemblies.
§ The Privy Council is to some extent removed from the political fray in which departments of state are inevitably immersed, and the professions attach great importance to that. They hold the Privy Council and its contribution to their work in high regard and want to ensure that existing links continue. If the links are to be broken, it must be by primary legislation.
§ The final purpose achieved by this group of amendments relates specifically to the professions regulated by the Professions Supplementary to Medicine Act 1960, about which we have already heard much this afternoon. At present there are nine such professions. They include the physiotherapists, occupational therapists, chiropodists and podiatrists, but there are many others, including psychologists, clinical scientists and speech and language therapists, who are seeking regulation in order to achieve protection of title—a point to which I shall return briefly—but above all to ensure that those practising in those professions are registered and properly qualified.
§ The amendments make appropriate provisions to ensure that when a successor body to the CPSM is established the regulatory functions are reserved to that successor body. They also ensure that where the use of certain titles is protected those titles will continue to have at least the same level of protection and that the new body will come under aegis of the Privy Council, as the CPSM urgently wishes. We look forward to seeing, and to being consulted on, details of the Government's proposals under the new order-making powers effected under the Bill relating to the successor to the Council for Professions Allied to Medicine.
§ The regulatory bodies are not asking for the status quo to be protected. They recognise that the order-making power could be very useful in modernising systems of self-regulation, and they welcome this. I should like to give examples. The GMC wishes to see the Medical Act 1983 amended to create a single system of registration for overseas doctors, a change which would now be possible only under primary legislation and one which would be greatly welcomed by the Commission for Racial Equality. It is also the wish of the General Dental Council to increase its lay membership and have powers over professional performance such as those now available to the GMC. These are all issues which readily could be, and we hope will be, dealt with by order. But fundamental change in the nature and functions of these bodies should be reserved to primary legislation for Parliament to decide.
§ I must now refer in detail to the purpose of the individual amendments. Amendment No. 202 is a purely technical amendment relating to others upon which it will be conditional.1825
§ Amendment No. 203 refers to the use of the term "professional body". The substance of this and other amendments is that there is no need for any reference to a "professional body" in the Bill since the order-making power should not be used to transfer functions away from existing regulatory bodies. Hence we propose the substitution of "regulatory" for "professional".
Amendment No. 204 is a little more detailed and complex. It adds to the protection specified in Amendment No. 210. It deletes the existing wording,
An Order may not abolish the regulatory body of any profession",
and sets out other purposes for which an order-making power cannot be used. Heading (a) prevents the reduction by order of the proportion of professional members of a regulatory body.
§ Heading (b) preserves existing protections on the use of title or functions—in other words, non-dentists practising as denturists or non-state-registered practitioners calling themselves state-registered, which would be specifically precluded—and the penalties which might be imposed on those in breach. With regard to protection of title, I mention in passing that there is no law in this country to prevent anyone from practising medicine. One cannot practise as a dentist unless one is registered under the Dentists Act or unless one is a doctor acting in an emergency. One cannot practise as a veterinary surgeon unless one is registered. But the only protection in law for practising doctors is that it is illegal for anyone not registered under the Medical Act to call themselves a registered medical practitioner. That is the protected title in medicine.
§ Heading (c) protects the role of the Privy Council where it currently exists. The 25 lay members are nominated to the GMC by the Privy Council, which must approve the GMC's rules and its electoral scheme. Under the Medical Act 1983 default powers fall to the Privy Council. If the GMC is not discharging its statutory function, the Privy Council may notify the GMC and give instructions to it or exercise any power vested in the GMC; and in turn the GMC, or its education committee, may recommend to the Privy Council that a registration previously conferred by a training body, such as a medical school or university, should no longer be registered under the medical Acts. Any doctor who is struck off the register by the General Medical Council has the right of appeal to the Judicial Committee of the Privy Council. These are issues about which all the professions feel strongly, and the same issues relate to each of the professions.
§ Heading (d) reintroduces the prohibition on abolition of a regulatory body by order.
§ I realise that these are extremely complex matters. Sub-paragraph (2) of the amendment allows an order-making power to be used to enable a regulatory body itself to make rules to reduce the proportion of its professional members. The General Dental Council, for example, would like to be able to increase its lay membership by a change in rules, and the order-making power would be useful in achieving that.1826
§ Amendment No. 207 refers back to Clause 47. The effect is to exclude consideration of the Council for Professions Supplementary to Medicine at this point.
§ In Amendment No. 208 the amendment to line 6 on page 52 is crucial. The substitution of "regulatory" for "professional" removes any function of a professional body as defined in paragraph 10 of the schedule.
§ Similarly, by specifying "that regulatory" body, Amendment No. 209 prohibits the transfer by order of any function by a person or body other than the regulatory body which currently exercises that function. Such a fundamental change should not be made by secondary legislation.
§ Amendment No. 210 relates to misconduct. At present the Bill appears to allow for the possibility of a regulatory body acting as an agency or secretariat to a third party that decided the outcome of cases, hence the addition of the words "and determining cases", which is within the authority of each of the self-regulatory authorities at the moment. Any change in the function of determining fitness to practise cases would be fundamental and so should be reserved to primary legislation.
§ Amendment No. 211 simply adds, in paragraph (e), the need to include continuing professional development and education for those on a register, and paragraph (f) preserves financial independence to set fees for registrants.
§ Amendment No. 213 is an important amendment to which reference was made earlier today. The amendment seeks to achieve the same protections for the successor body to the CPSM. The Health Bill repeals the Professions Supplementary to Medicine Act 1960. As currently drafted, the limits in Schedule 3 would apply to the existing CPSM but not its successor. This is a matter of concern to that body.
§ Amendment No. 215 is consequent upon the earlier amendments. There is no need to define a professional body if there is no prospect that the core functions of a regulatory body will he taken over by anyone other than that body as a result of the order-making power.
§ Finally, Amendment No. 216 includes in the definition of a professional body a reference to its committees. We were not clear what the department had in mind in drafting that particular provision. However, having just deleted "professional body" under these amendments we have added "committees" to the definition of "regulatory body" for tidiness because many of the existing regulatory bodies have committees with statutory functions. Amendment No. 217 is a purely technical matter that relates to the earlier amendments.
§ I appreciate that this is a series of complex amendments, but because they are interrelated it is important to speak to each of them and to the principles that underlie them. I seek to reassure the noble Lord, Lord Peston, and other Members of the Committee that all of the self-regulatory bodies referred to in the Bill and those to whom I have referred in moving this amendment, are deeply anxious to maintain and improve their role in regulating the professional activities in all respects in the interests of the public. I beg to move.1827
§ 5.15 p.m.
I rise to express emphatic support for this group of amendments. With Clause 47 and Schedule 3 we are considering a part of the Bill that grants to the Secretary of State powers to make fundamental changes to the primary legislation that governs professional self-regulation. These powers are sweeping and unprecedented. To appreciate their import fully they need to be seen not merely as a set of self-contained issues but as part of a much wider agenda, evidenced by other parts of the Bill, to tighten political control over the medical profession. That prospect fills those of us on these Benches with deep dismay.
As the noble Lord, Lord Walton, said, professional self-regulation has been the cornerstone on which public trust and confidence in the medical profession has been founded for the past 150 years. One of the main reasons for that is that the professionals themselves have confidence in the system. The regulatory function of the GMC works because doctors know that the standards of conduct and practice that they uphold can be determined and assessed in the final analysis only by their peers. The Minister said at Second Reading that self-regulation was part of the quality agenda. To subject the medical profession to direct government control, as this Bill would allow, would be deeply detrimental to the quality of patient care.
If the aim of the Government is greater consistency of care within the NHS, as the Minister has said a number of times, that can be achieved perfectly well without these powers. I do not oppose the order-making powers in Clause 47 of the Bill; indeed, there is every argument for having them to make quick and sensible improvements to the detail of the regulatory framework of the medical profession as the need arises. However, I oppose the completely open-ended and sweeping nature of the powers. Nor do I understand why such powers are needed if Ministers' pronouncements on this subject are to be believed. The Minister herself said at Second Reading:We do not wish to dismantle the framework of professional self-regulation".—[Official Report, 9/2/99; col. 186.]If that is so, the Government must say straight away that they accept the thrust of these amendments. If not, the despondency and distrust that is now evident in the medical profession will be magnified out of recognition. The Minister must realise that good intentions on this issue are not enough. If these powers are incorporated into the Bill those good intentions need count for nothing under a different set of Ministers in a future government. Underlying this issue is the need to achieve partnership and co-operation instead of conflict with the medical profession.
I very much hope that the Minister's hitherto constructive approach to debates in Committee and her desire to listen to the arguments put forward will again be evident in her response to these amendments.
§ Lord Kilpatrick of Kincraig
It is almost three years since I spoke in this Chamber. The occasion was my maiden speech. I was acutely aware of a remark by Sir Winston Churchill about a fellow Member in the 1828 other place. He said of that other Member that he had missed a great opportunity to remain silent. Accordingly, as I am now on my feet, the Committee will realise just how strongly I feel about the provisions of the Bill and how totally supportive I am of the amendments that have been described in detail by my noble friend Lord Walton.
In 1992, when I had been President of the General Medical Council for three years, the GMC unanimously backed me to approach the then government through the Privy Council to widen the powers of the council to include performance. At that time its powers relating to fitness to practise were confined to misconduct and health. This was a fundamental change because it allowed the council to deal with a deficiency in the day-to-day pattern of professional practice. I believe that a pattern of behaviour of that kind is confined almost exclusively to the medical profession. That cannot be dealt with under the criminal law. Therefore, the proposal was very far-reaching.
That approach having been made in 1992, it was three years before legislative time was obtained. Even then it was on the basis that the council could use its persuasive powers to gain all-party support, which it did. At that time, the noble Baronesses, Lady Cumberlege and Lady Jay, and Lady Robson, (sadly no longer with us) supported the provision and the Act was amended. Having had that experience of extensive consultation and detailed scrutiny which goes into a piece of primary legislation, I am convinced that no fundamental change should be made to a regulatory body such as the General Medical Council, although there are others, except by primary legislation.
At the same time, I am very supportive of the suggestion of having order-making powers. The General Medical Council wishes it had had them a long time ago. I can give a good example of that. From 1978, the council was allowed to deal specifically with the ill-health of doctors. However, under that legislation, which was introduced in an amendment to the original Medical Act, we were unable to suspend a doctor on grounds of ill-health for longer than one year at a time. Having chaired the council's health committee for some years, I found that it had to bring doctors back year after year, building up a large clinic. Clearly, the council needed the ability to impose indefinite suspension for some chronic disorders. In fact, that ability was tacked on by an amendment to the Medical Act relating to performance. However, it would have been a good example of order making not to change a fundamental function but to improve a particular function.
I am struck by the Explanatory Notes which accompany the Bill because they refer frequently to professional regulation. That means the regulation of a profession. The words "professional self-regulation" do not appear in the Explanatory Notes. That is the regulation of a profession by a profession with significant lay input.
I was not able to attend the Second Reading of the Bill, but I know that the noble Lord, Lord Ewing, who I know very well because we come from the same part of the country, said that the professions and the press 1829 never put their house in order until they are under threat of legislation. That is just not so. It was the General Medical Council which initiated the suggestion relating to performance, and it had to wait three years before parliamentary time was found.
Furthermore, it is frequently said that doctors and the profession are always defensive, but the important question in relation to the Bill is what is to be defended. I can envisage the possibility that Parliament might abolish a regulatory body such as the General Medical Council, which is not possible under the Bill; or it might remove a fundamental function from the regulatory body, which is possible under the Bill. If either act occurred, the position in the United Kingdom would be the same as in the majority of countries of the world. Only a minority of countries have professional self-regulation. They include Australia, New Zealand, Canada, South Africa, the Republic of Ireland and the United States. But if the United Kingdom were to become like the majority, something would be lost. There is a close and significant correlation between high standards of medical practice and professional self-regulation.
I endorse totally what was said so eloquently by my noble friend Lord Walton concerning all the amendments. I urge upon the Minister our view that there should be no transfer of fundamental functions from the present regulatory bodies and that primary legislation and the order-making power should continue within the context of the present regulatory bodies and professional self-regulation under the present relationship with the Privy Council.
§ Lord Clement-Jones
I rise to add the strong support of these Benches for the amendments. We expressed our considerable concerns about Clause 47. The amendments, which are vastly superior to our Amendment No. 206, go to the core of addressing the concerns of the professions allied to medicine about the terms of the clause. The clear and authoritative exposition of the noble Lord, Lord Walton, was perhaps too modest in expressing the absolutely united view of all those professions about the amendments and about the absolute necessity of altering Clause 47 to incorporate the safeguards.
The huge volume of mail in my postbag, which is awesome to behold, indicates the way in which the professions have united behind the amendments. I believe that they are very much in the interests of the public. It is not a matter of professional self-protection but of public protection. It is quite clear that if self-regulation is to continue, a hard core of elements must remain. The noble Lord, Lord Walton, clearly expressed them as the Privy Council relationship; lay member composition; no transfer without consent; no abolition; the levels of penalties; and jurisdiction over fitness to practise. Those are absolutely essential elements. They are not contained in the primary legislation and they must be if self-regulation is to be protected.
1830 In an extremely authoritative contribution, the noble Lord, Lord Kilpatrick, made clear the argument about flexibility. Of course we need flexibility, but we must have in primary legislation that core element to safeguard self-regulation.
The noble Earl, Lord Howe, made a strong point about the good will of the professions. In a time of change, we need that good will if we are to ensure that all the new elements are incorporated. The GMC—I single it out, but the point applies to other professions—has made massive strides, in particular with revalidation. Sir Donald Irvine has shaken up the way in which the medical profession is being regulated and we should welcome that. In return, we should provide those elements in order to ensure that the system, which is beginning to work much more effectively in rooting out incompetence, can work in a proper fashion. I urge the Committee to support the amendments.
§ 5.30 p.m.
§ Lord Desai
I rise to express doubts about what is going on. The more the noble Lord, Lord Walton, spoke I became worried. Perhaps I may express my experience as a lay member of the Bar Council's committee of professional conduct. All that the Bar Council is worried about is that solicitors do not poach barristers' business. That is all it is interested in. Presumably, solicitors have the same worries about barristers.
It seems to me that self-regulation utterly failed in the City; we know that it failed. Before that, similar arguments were heard about how great self-regulation was. As a reader of newspapers, especially tabloids, I come across many scandals in the health service concerning the provision of medical care for patients. I do not know the technicalities. I am sure that everybody is very careful, and safeguards their professional standing. However, it does not seem that everything is all right in the way that doctors treat patients. I could make a similar comment about judges and barristers, but I shall not do so. However, we can no longer presume that the old regime will stay. Patients want to know more; they demand explanations; they are not satisfied by the way they are treated; apologies are late and appalling things happen.
As an economist I come from a non-regulated profession and I can do only limited harm to people. Anybody can practise as an economist. It is interesting how the debate has concentrated mainly on doctors and the General Medical Council. Of course, it is a most powerful profession, and it is difficult to do anything about doctors or lawyers in this country.
I welcome some of the provisions in Clause 47. The time has come when the public has to know that their interests are being looked after by somebody, and that somebody must be the Government. We can no longer take for granted that the public's interest is properly guarded by the professions. The noble Lord, Lord Kilpatrick, denied the fact that professions do not reform themselves until there are complaints. I believe that professions change only when there is a big row or a big scandal. Thank God that the press in this country 1831 makes a big row. There have been bad judgments from law courts, and mistakes have been made. I believe that self-regulation is very good, but, as my noble friend Lord Peston stated, we have paid a high price for barriers to entry in return, perhaps, for better quality. The Government must have power to give the public the assurance that if something goes wrong, they have one friend—the Government.
§ Baroness McFarlane of Llandaff
I rise to speak to the amendment tabled in the names of my noble friends Lord Walton of Detchant, Lord Kilpatrick of Kincraig, and Lady Emerton, who is, unfortunately, out of the country this week.
I do not want to reiterate all that my noble friend Lord Walton has said and take up the time of the Committee. As always, he has presented the arguments with cogency. However, I should like to say that all the healthcare professions to whom I have spoken have been in absolute agreement with the amendments. Not only the powerful medical profession, but also nursing, midwifery, health visiting, dentistry, pharmacy and many other professions recognise the importance of self-regulation for the interests of the public. We are at one in the wish to see self-regulation perpetuated.
However, as I talk to different professions, I believe that we are also at one in recognising the usefulness of orders for making quick and flexible changes. Therefore, I do not want to stand in the way of those who wish to use orders to see changes brought about in the profession, so long as such orders do not interfere with the fundamental roles of self-regulation.
As the report from the Committee so rightly states, and as the Minister quoted, striking the right balance between primary legislation and orders is the great conundrum ahead of us. Those of the nursing, midwifery and health visiting professions to whom I have spoken want to see many of the Government's proposals go forward so that there is flexibility, but they do not want to lose the right of self-regulation. That is why I asked the Minister for an assurance that there would be the same protection under orders. The Minister gave that assurance. I should like to probe a little as to how the noble Baroness can give the assurance that protection will be the same under orders as it would if written on the face of the Bill.
At Second Reading, the Minister indicated that the J. M. Consulting report had been published. The comments from the Department of Health, published the same day, indicated that the Government would seek to table an amendment to repeal the Nurses, Midwives and Health Visitors Act 1997 and that that, presumably, would be replaced by a body created by orders. Does that mean that nursing, midwifery and health visiting are entirely written out of the Bill and that their self-protecting powers and self-regulatory powers are entirely lost? I should like a reassurance that the protections we seek to build in by the amendments will be available in orders and that legislation will be put in place.
We are given so many reassurances. It sounds wonderful, and we think, "Yes, let's go forward with this". But, what happens? We are reassured that 1832 everything can be dealt with by an affirmative resolution. But what happens if an order is brought by an affirmative resolution and then negatived? Would we then have no powers to take forward what has been agreed? I should like reassurance about the mechanisms that will be available to us in orders, and exactly what is implied, particularly for the professions of nursing, midwifery and health visiting.
§ Lord Colwyn
I, too, should like to support the amendments. I only regret that I was a little slow and did not put my name down to be one of the main supporters. I apologise for that. I know that my noble friend Lady Gardner of Parkes, who was formerly an elected member of the General Dental Council, also supports the amendments. She has a prior engagement outside the Palace of Westminster and is unable to speak tonight.
The Committee will be aware that I am a practising dentist. As such, I know the value placed by my profession on maintaining the highest professional standards. Dentists provide care to their patients, whether under NHS or private contracts, from dental practices which they own and manage; practices which are predominantly in the high street, not hospitals and specialist centres. High standards and consumer satisfaction are what make dental practices thrive. Therefore, it is not surprising that the dental profession places a high value on professional regulation.
Under the leadership of Dame Margaret Seward, and with the support of the profession, the GDC has been focused on how better to protect the public. The Conservative Government promised to introduce much-needed reforms to the Dentists Act 1984. Those changes, which have become key issues, included recertification; a statutory obligation to provide evidence of continuing professional education on a five-yearly cycle, and the fact that current procedures, which deal with fitness to practise, focus only on misconduct and health matters and do not deal with poor performance.
The council, again with the approval of the profession, has been ready to introduce a statutory scheme to ensure that dentists whose clinical performance is a potential risk to the public are given the opportunity to relearn skills, with the ultimate sanction of their practice being restricted if they fail to demonstrate competence.
My purpose in highlighting these issues is to remind the Government that the council has sought legislative change and has been restricted by the nature of the current Dentists Act. The opportunity which this Bill provides to make the necessary changes by order, rather than through primary legislation, is welcome. However, as we have heard, the order-making power, as written into this legislation, does not contain the safeguards and limitations which the GDC and other regulated health professions feel are necessary to ensure a continuing independent role. The need for more lay members and the commitment to the principles of professional regulation exercised by dentists themselves are important issues.
1833 As currently drafted, the Bill does not protect the council's core functions. Education at both undergraduate and postgraduate levels, continuing professional development, recertification, and the monitoring of poor performance are key reforms in the public interest.
Finally, the GDC is unique among the health regulatory bodies in having statutory responsibility for hygienists and therapists who are important members of the dental team, a team that also includes dental nurses and dental technicians who also seek statutory registration. The Bill, as drafted, does not provide an opportunity for change which must be in the interests of the public and the profession. The Minister says that she wants to strengthen and modernise the systems of professional regulation. The amendment provides the necessary limitations and safeguards which the health professions seek.
§ Lord Rea
These amendments have been spoken to eloquently by two senior members of my profession and eminent members of the nursing and dental professions. They have expressed extremely clearly their concerns about the Bill with regard to professional regulation, and particularly self-regulation.
I know that my noble friend the Minister may not be able to accept the amendments as they stand, but I hope she will be able to say exactly why she cannot accept them. I hope also that she may have some suggestions about amendments that are acceptable both to her and to my former headmasters—if I may so describe them—the two former presidents of the General Medical Council, compared to whom I am only a schoolboy. I hope that my noble friend will take their concerns into account as they are widely shared not only by those in the medical profession but also by many of the other professions which are currently self-regulating. I daresay that when my noble friend is making up her mind on these amendments she will also take into account some of the remarks made by my noble friend Lord Desai.
§ Baroness Cumberlege
I intervene briefly and in a spirit of optimism. I take the point made by the noble Lord, Lord Clement-Jones, that one of the great challenges in the NHS is trying to unite the professional tribes. I believe that at a stroke the Government have succeeded in doing that. However, it is a pity that the professions have united against these clauses. I believe that both parties—the Government and the regulatory bodies—want a resolution. Indeed, in January, the Minister's honourable friend said that he was seeking to achieve just that. I know that the Minister, having chaired a hospital trust, recognises the importance of keeping the professions on board in order to provide services of quality. There is room here for accommodation.
I very much accept what the Minister said earlier about the backlog of work that needs to be tackled. I accept that some of the issues dealt with by the regulatory bodies need a speedy resolution and that order-making powers are appropriate in such cases.
1834 The noble Lord, Lord Walton, said categorically—I know that he is right—that the medical profession is not seeking to maintain the status quo; it really wants to see some improvements to its regulatory powers. I know that that is true of the other professions also. Perhaps those who drafted the clauses did not have enough finesse or sensitivity to pick up all the nuances. I know that the Minister will have listened carefully to what has been said—she always does—but I hope that if she cannot accept these amendments, she will return to her department to work out provisions that are acceptable to all. I believe that resolution is not far away.
§ 5.45 p.m.
§ Lord Peston
I start with two very cynical remarks. First, I was interested in what the noble Lord, Lord Clement-Jones, said about the mail that he has received. I, too, have received a lot of mail, but all of it from the professional bodies. I did not get a single letter from a patient or a group of patients saying, "We desperately need to support the professional bodies in our own interests." I should be interested to know exactly what mail the noble Lord received; mine was certainly not the same as his.
Secondly, my heart goes out to the noble Earl, Lord Howe. I think of the many years I spent on that Front Bench and wonder what sort of speech I would have made on this occasion. I conclude that I would have made a very similar speech, if not precisely the same one. I reflect ruefully, however, that I made many speeches against order-making powers and the damage they did, resulting in the end of this and the end of that, only for the government of which the noble Earl was a proud member to march their troops through the Lobbies and defeat me on every occasion. There was no question of weighing the balance; the government simply defeated us. That was because, not only that government, but all governments, want to get not only their Bills through but also their order-making powers. I do not criticise the noble Earl for that. Either I was right then and he was wrong—or perhaps this Government are now right and I was wrong then. In any case we all have our part to play in the great drama that is the House of Lords, and the part of the Opposition Front Bench is to talk about order-making powers and the threat that they pose to the future of our great nation.
Having said all that, perhaps I should add—I have said this previously—that I am a great supporter of self-regulation. Wearing my economist's hat, I believe that self-regulation is an efficient way of delivering what is wanted by the clients who, in this case, are the patients. It would be quite wrong to ignore general principles in relation to this Bill. This matter relates not only to doctors, but to all the professions. I am not one of those who say that all professionals are just a bunch of racketeers although some very distinguished economists do take that view. Indeed, some of the world's greatest economists argue that all the professions are an abomination and need to be abolished. They say that their legislative support should be removed and that they should have to compete in the free market because the free market would expose the good as opposed to the bad. That is not a view I hold, 1835 but I can tell the Committee that economists who are Nobel Prize winners do take that view. I do not; I do not go that far.
This is a serious matter. Professions have responsibilities if they have the power of self-regulation, and they must deliver the goods. In my experience, my noble friend Lord Desai is right. On the whole, the professions deliver when they are subject to pressure. I do not criticise them for that. I am not a professional in the same sense, but as a professor it never occurred to me that anything I did was ever other than perfect. I always felt that I was doing a proper, professional job. I always professed to be doing absolutely the best I could in the interests of my students. Occasionally, I was subject to professionals saying, "Would you prove that?", and I hated that, just as I am sure that all the leading medical professionals and all lawyers also hate it. That is why I do not greatly criticise the professions for saying, "Don't attack us too much because we'll move when we can." However, it is important also to view matters from the other side.
It had never occurred to me that the Government's position was that they favoured deregulation—perhaps my noble friend will comment on that—or that they intended to use the order-making power in any way other than as a last resort. Occasionally, of course, it may be used as a first resort when the professions themselves want change rapidly and do not want to sit in a very long queue awaiting primary legislation.
As I said earlier, when I was a member of the Council of the Royal Pharmaceutical Society there were matters to be considered including fitness to practise and so forth. One's heart sank when one was told that it would be years before something could be done. I certainly wish to see the order-making power used for that purpose. Therefore, I hope that the Minister will be able to state the Government's intention to reinforce the professions and to be supportive of them. I hope that it will be done in ways which the noble Lord, Lord Walton, and his fellow supporters of the amendment like. But an order-making power is required. That would be in the interests of the professions. It would be seen that their performance was good, not recognisably perfect, but getting better. I hope that my noble friend will speak as sympathetically as she can. However, I shall be a little taken aback if she felt she should accept the amendment.
§ Baroness Carnegy of Lour
Perhaps I may ask a quick and more detailed question as regards the inter-relationship between Clause 47 Schedule 3 and the Scottish Parliament. The Explanatory Notes state that Schedule 3, paragraph 5,will enable functions to be conferred on … Scottish Ministers [and that] an order could be made … setting up bodies for different parts of the United Kingdom to deal with matters in connection with professional regulation".Can the Minister say whether it is conceivable that paragraph 5 of Schedule 3 could allow Scottish Ministers to set up bodies which conflicted with those protected from change under the Bill? I am trying to be helpful to the Government in this case. It may be that there is a clash between what is allowed under that 1836 paragraph and what the Minister told me about paragraph 2 as regards what an order may not do. It will be helpful and comforting to know the answer to that question, if it is possible.
§ Lord Christopher
I had not intended to speak in this debate until I noted that the president of the General Medical Council, under whom I served for some five and a half years, was speaking in it. I left the GMC after that time because the law said that I should at my age. I found that somewhat troublesome at the time because one of the matters being discussed was euthanasia.
The noble Lord, Lord Kilpatrick, earned my respect, as has his successor, Sir Donald Irvine. Having listened to some of my colleagues perhaps I may make a few remarks which may encourage the supporters of the amendment to reflect. I recognise that they will wish to hear what words of comfort may come from our own Front Bench.
A number of factors relating to the GMC do not justify the worries which the supporters of the amendment have. In my experience the medical profession can only be effectively regulated, under whatever umbrella, by doctors. I have served on the ethics and the disciplinary committees. It is perhaps worth mentioning in passing that the doctors were invariably tougher with those against whom allegations had been made than were the lay members. Now there is such a range of professions. There has been mention of a disease and there is a specialism for that. I do not myself see that doctors could ever be other than largely in a majority. I do not believe that a lay committee could effectively do what was required in majority terms.
The president of the General Medical Council is not a kind of union general secretary, but there are similarities. 1 recall a number of debates in which the noble Lord, Lord Kilpatrick, fought very hard to persuade members towards some change and received a good deal of opposition in the process. As the general secretary of a union in the past, I know how useful it was to have some sanction which enabled me to say to people, "If we do not perform in the way that the public expect we are under an earlier threat than we might have been otherwise under the regulations".
I cannot believe that the GMC is under any serious threat of becoming nationalised provided that it performs well. It is most likely to be able to do so by achieving quick change rather than in a three-year cycle, which I remember very well. Parliamentary time stood in the way of change and it will stand in the way of other change in future, the nature of which we cannot judge. I say to my noble friend Lord Peston that most of the doctors I came across who had gone down the market road were struck off. Therefore, there is not a serious threat in that direction. 1 believe that, subject to what the Minister has to say, it will be good to give some thought to this area. I do not believe that the fears expressed are fully justified although I understand them.
§ Baroness Hayman
We have had an extremely useful debate about an area of this legislation which is of great importance to all who have considered the issues concerning professional self-regulation. At the 1837 beginning I assure the noble Lord, Lord Kilpatrick of Kincraig, that there is no sinister motive surrounding "the regulation of the professions" as set out in the Explanatory Notes rather than professional self-regulation. I hope that I have made it absolutely clear on a number of occasions that the primary purpose of the Government is the protection of the public. As has been eloquently expressed this afternoon, we believe that with these professions the public has been in the past, and will continue to be, best protected by effective self-regulation of the professions.
The purpose of bringing forward these proposals is not in any way either to dismantle professional self-regulation or undermine it. I feel a little bruised occasionally. The point has been made many times in the debate today about the pressure from the professions themselves regarding the frustration they have felt at being unable to amend the provisions concerning professional self-regulation. There are concerns that we may not have drafted the legislation correctly. That is usually expressed first. Then there is a kind of throwaway line that the need to do that is recognised and that it is not desired to stand in the way of the general principle.
Perhaps I may put the matter the other way round. It is in everyone's interest to get on with the job of strengthening professional self-regulation and the order-making powers are brought forward in order to achieve that, and not for any sinister motive. On that basis, I hope there has not been produced the despondency and distrust to which the noble Earl referred. Some people will be glad that they will be nearer to getting on with the job that needs to be done in terms of providing a more satisfactory framework for professional self-regulation.
I was looking at the terms in which the professions supplementary to medicine can deal with individual members. They have to look at the conduct of individual members and see whether there has been,infamous conduct in any professional respect".I am not sure that that is the most appropriate way of looking at "fitness to practise" issues as we approach the 21st century. There are a whole raft of areas in relation to protection of title about which we have talked at great length today where those proposals will be of absolute benefit. To be more conciliatory, I was particularly grateful to my noble friends Lord Desai and Lord Peston for bringing economists into the debate. It would unite the whole Committee to agree that the public deserve to be afforded some protection from the profession of economists who are as capable as anyone else discussed tonight of doing harm.
At Second Reading I explained the broad thrust of our policy regarding the order-making power. We are seeking to provide a mechanism that will enable us to modernise and strengthen the existing systems of professional self regulation. We intend to work with the professions to ensure that those systems are more open, responsive and publicly accountable. A number of proposals are already on the table for the use of the power. The replacement of the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act are two such proposals. But the other professions also have changes 1838 that they wish to make. Those have been alluded to today. The dentists, the professions supplementary to medicine and the pharmacists are anxious to make progress. The order-making power must therefore be of sufficient scope to ensure that the differing needs of each profession can be met. That is sometimes where difficulty arises. One professional group looks at the provisions as they stand and feels that they are wider than they want. But it does not look across the whole span of what we need to do.
We recognise—as I hope I have made clear throughout our debate—that there need to be safeguards. The Bill currently contains a number of important safeguards which have been widely welcomed. I have mentioned too the procedural requirements around consultation and affirmative procedures which we intend to strengthen in the light of the recommendations of the Delegated Powers and Deregulation Committee. I hope that the noble Baroness, Lady McFarlane, will accept that these are not just reassurances or empty words; they are government proposals to bring forward amendments that will be on the face of the Bill.
There is also the provision that the main regulatory bodies cannot be abolished—with the exception of the CPSM, and soon the UKCC, for the reasons I explained—and I shall come later to the safeguards that we must introduce for those successor bodies. I take the point that they should not be left in limbo but should be allowed the same protection as the bodies that will be ongoing. The four functions which we believe are at the heart of professional self-regulation—the keeping of the register, the setting of standards of education for entry into the profession, the provision of guidance on standards of professional conduct and fitness to practise procedures—cannot be removed from professional regulatory bodies by order.
We therefore have clear limitations on the order-making power already on the face of the Bill. But, as I said at Second Reading, we are seeking to do something which we believe to be in the interests of the professions themselves as well as in the interests of patients. And if there are ways in which we can improve the balance which needs to be struck in these provisions—of ensuring sufficient scope to make the changes that need to be made and providing appropriate safeguards—then we would consider them carefully and constructively.
That is the light in which I have listened to the debate. Perhaps I can therefore turn to a number of different issues which have been raised. The Committee will understand that the changes that we may bring forward will need to be drafted not necessarily in the way that they are drafted in specific amendments.
I turn first to the issue of lay membership. We received representations from some of the statutory regulatory bodies about their concerns that the order-making power might be used to impose a majority of lay members on the bodies. My honourable friend the Minister of State for Health and I wrote to the regulatory bodies to reassure them that,We welcome the moves of some Councils to increase lay membership and improve accountability to the public and would want to see the power used for such changes quite soon. We would not, however, wish to impose a lay majority".1839 We understand the great importance attached by the regulatory bodies to the fact that they are part of the system of professional self-regulation. It is clear that one of the main advantages of such a system is that there is a large measure of professional knowledge and experience in the membership of the body, leavened by a good proportion of lay involvement. As has been pointed out, the GMC, in the past couple of years, increased the proportion of lay members to 25 per cent. while the Medical Act still requires a majority of members to be elected by doctors on the medical register from those on the medical register.
It is equally important that self-regulation should not operate to the exclusion of perspectives other than those of the profession concerned. The presence of lay members on regulatory bodies and committees serves many functions. It provides an opportunity to involve people with different expertise and experience. It also ensures that professional regulatory bodies do not operate in isolation from developments and changes in other parts of the professional world or society at large.
The point was made that the climate in which professional self-regulation takes place today is very different from the climate in which some of the original legislation was passed. Perhaps most importantly, lay involvement reinforces and provides a visible demonstration of bodies' commitment to regulation which places the public interest—be it that of individual patients or the public at large—above those of the profession itself or of its individual members.
I know that the General Dental Council wishes to increase its lay membership from six to 12 and that the Royal Pharmaceutical Society of Great Britain consulted on proposals which will alter the composition of its statutory disciplinary committees while ensuring that there continues to be a strong lay element. We are sympathetic to the spirit of the amendments tabled on this issue. We do not wish to impose a lay majority. I shall therefore consider placing this commitment on the face of the Bill. I should like to consider the issues raised in this debate and bring forward proposals.
I turn now to the issue of penalties and the amendment which seeks to ensure that there is no reduction of penalties. I applaud the sentiment behind the amendment. We need to give patients effective protection from charlatans. There will be little protection afforded if protection of title is not backed up by the possible imposition of a penalty. I can assure the Committee that the Government have no intention of weakening the deterrent against potential abuse. However, for a criminal offence, two elements determine the penalty which may be imposed. One is the maximum level on the standard scale at which a fine may be levied. The other is the actual amount that is attached to each level as set out in the standard scale. The standard scale applies to all criminal offences, not just those in respect of professional self-regulation. The proposed amendment would limit any subsequent review of penalties and while, as I said, we have no intention of weakening the deterrents available in this field, given the integration with Home Office 1840 responsibility on other criminal penalties, it would be wrong to be prescriptive on the face of the Bill on this issue.
I turn to the role of the Privy Council. I understand that many of the professions attach great importance to their accountability to and relationship with the Privy Council. There are many matters that at present require the approval of the Privy Council; for instance, the making of rules for fitness to practise committees. We are happy to see those accountability arrangements for the existing regulatory bodies continue.
In respect of new and replacement organisations, I think it is right that their lines of accountability should be fully explored through consultation at the time they are set up. The Government have given a commitment in relationship to the CPSM, for example, to address this issue as part of the discussions with the professions on the constitution of its successor body. We would nevertheless expect strong justification for change where the present arrangements can be shown to have worked well.
I should point out that this is not the only model that can work well. The UKCC is accountable not to the Privy Council but to the Secretary of State and that accountability relationship has been very effective. I have heard the concerns which have been voiced today, however, particularly in relation to the professions allied to medicine. It would perhaps be helpful to say that when we do consult on the replacement body for the CPSM we intend to do so on the basis of retaining accountability to the Privy Council for any such successor body.
We have argued thus far for avoiding placing this sort of detail on the face of the Bill but, given the strength of feeling that has been expressed this evening, I would be grateful if the Committee allowed me to consider the matter further and to undertake that I would he willing to bring forward an appropriate amendment, if it is possible to formulate one—and I believe that there are some difficulties in the drafting here—which preserves the role of the Privy Council in respect of the existing regulatory bodies.
I turn now to the transfer of functions from the regulatory bodies. I have already made clear our intention to ensure an appropriate balance between flexibility and safeguards. I am grateful for the contributions to this debate in assessing whether we have struck the balance appropriately in the Bill as currently drafted. I take the point that the nuances may not have been perfect in original drafting. One of the benefits of introducing a Bill in your Lordships' House is that we have the opportunity to go into this sort of detail and to look at ways in which it can be improved. I hope that this will not be seen as backtracking or sinister motives, but as a genuine attempt to get that balance right.
On the issue of determining cases, the Government remain concerned about poorly performing doctors and other professionals and are considering the best way forward on a whole range of issues arising from handling doctors' performance in particular. This includes identifying poor performance and dealing with 1841 it, either within or outside the disciplinary procedures as appropriate. We consider that the role of the statutory regulatory bodies in administering the procedures relating to misconduct, unfitness to practise and similar issues is a fundamental matter that may need to be modernised: but we are clear that, if professional self-regulation means anything, the profession's regulatory body should determine individual cases and we have no intention whatsoever of removing this function from the regulatory bodies.
I am sure that the phrase "administering procedures" in paragraph 8(2)(d) of Schedule 3 also includes the determining of individual cases. On that basis I believe that that amendment is unnecessary. I hope that explains our position and will give some reassurance to the noble Lord, Lord Walton, that it is not necessary to press his amendment on this particular issue.
In respect of Amendment No. 211, which adds the functions of determining fees and continuing professional development to the list of fundamentals, I can assure the Committee that the Government are fully committed to encouraging and promoting continuing professional education and development. Indeed, the encouragement of life-long learning is one of the Government's key objectives across the board, not only in the field of health and healthcare and not only for the professions, although of course it is of key importance for the professions.
The independence of the statutory regulatory bodies from government interference in the minutiae of their workings is understandably important to them. Financial matters give cause for much debate in the medical profession especially, and the freedom to set registrants' fees is an important matter for all professions if they are to maintain their financial viability. It is not the Government's intention to wrest control of bodies' financial arrangements from them, and I can say categorically that we would not be using the order-making power so to do. I do not believe, however, that it is an issue so fundamental that it is appropriate to place this level of detail on the face of the Bill.
We have said that there are four fundamental functions which are essential to what we understand as professional self-regulation: keeping the register; setting the standards of education for entry into the profession; the provision of guidance on standards of professional conduct, and fitness to practise procedures. We believe that we have these essential functions, which need to be protected, right and we believe that they should be maintained.
The amendment of the definition of a regulatory body to include its committees raises a number of important issues, when taken together with the other amendments. It would, for example, prevent the abolition of any committee of any of the regulatory bodies. This will need careful thought. While the Government have no wish for a power which permits the removal by order of functions which are central and necessary for proper regulation of the professions, we are equally concerned to ensure that the power we do take is flexible enough to deal with as yet unforeseen developments. In this particular case, I am anxious that we should not end up 1842 with a position which prevents an order being used to bring forward proposals for the statutory regulatory bodies to modernise or rationalise existing committee structures. I am therefore of the view that this amendment would make the order-making powers unnecessarily inflexible.
I should like now to deal with the issue raised by the noble Baroness, Lady Carnegy, and to reassure her that there can be no separate regulation of the currently regulated health professions in Scotland. It is a reserved matter, subject to the caveats about new professions which I made earlier. This gives the power to the UK Government to confer functions on the Scottish Ministers, if it were felt appropriate. There are analogies now in the national boards for nurses, midwives and health visitors. I hope I have assured her, however, that there is not the possibility of a dual structure.
§ 6.15 p.m.
§ Baroness Carnegy of Lour
I thank the noble Baroness very much for that. The position is perhaps a little more complicated, and it might be that her colleague the noble Lord, Lord Macdonald, will be able to look at it from the point of view of the Scottish Office and write to me. I could then pass that on to the British Medical Association. Would that be in order?
§ Baroness Hayman
That would be extremely helpful, and I will ensure that the noble Baroness receives a letter on that point.
I come now to what seems to be the most important issue: that of whether any of the four fundamental functions that I have described can be removed from the existing regulatory bodies. I have listened very carefully to the arguments on this point. I understand the concerns that have been expressed, particularly by those who are proposing these amendments. I would like to reassure them that it has never been our intention to transfer the fundamental functions of the regulatory bodies to any government-appointed puppet body; nor has it been our intention to transfer such functions to representative bodies or trade unions such as the BMA, the RCN or the BDA. If the drafting allows for that, then it is inadvertence rather than malice that is to blame.
We sought to ensure that there was the flexibility to transfer functions from one professional regulatory body to another professional regulatory body, should it he appropriate to do so at some point in the future. In the light of the points which have been raised this evening and my discussions with the various regulatory bodies, however, it seems that the balance of which I spoke earlier, and for which we are aiming, has not quite been achieved in paragraph 8(1) of Schedule 3 to the Bill. There is a concern that the removal of any one of the four fundamental functions from the main regulatory body of the profession through the use of the order-making power would extend the scope of the Bill too far. Therefore, I shall bring forward an amendment at Report stage to ensure that the order-making power does not encompass such a step.
As we intend that the Professions Supplementary to Medicine Act 1960 and the Nurses, Midwives and Health Visitors Act 1997 should be repealed under this 1843 Bill, special provision will be needed in the case of the CPSM and the UKCC. I can assure the Committee that any successor bodies should have the same protection of functions as that reserved to the existing regulatory bodies. We will be putting the same safeguards on the face of the Bill for the successor bodies to the CPSM and the UKCC.
I hope that the Committee will feel that we have listened carefully to the concerns expressed both outside the Chamber and in today's debate. I trust that noble Lords will understand that we have tried very hard to ensure a balance that perhaps reflects more accurately our recognition of concern that we should ensure enough flexibility to be able to get on with doing what is agreed to be necessary but that we should not leave the possibility of undermining the structure of professional self-regulation which is valued not only by the professions but also by the Government. On the basis of the assurances I have given, which will be backed up by amendments I shall bring forward at the next stage, I hope that the noble Lord, Lord Walton, will feel able to withdraw his amendment.
§ Lord Walton of Detchant
In many respects this has been an exceptional debate. It has been inspiring in many ways and, certainly for me and, I am sure, for others, heartwarming and immensely interesting. I pay an exceptionally warm tribute to the Minister for the very careful, well-judged and, if I may say so, co-operative, constructive and courteous way in which she responded to our concerns. I pay also special tribute to my noble friends Lord Kilpatrick and Lady McFarlane, and to all of those Members of the Committee who have spoken. I assure the Minister that in tabling the amendments we recognised the good will of the Government and the fact that they had no intention of dismantling the present self-regulatory mechanisms which I genuinely believe have served the professions, and especially the public and patients, very well over many years. However, these are mechanisms in need of modification. The establishment of order-making powers will enable long-awaited changes to be made.
In passing, I should like to tell the noble Lord, Lord Desai, of a recent opinion poll which showed that 92 per cent. of the public trust their doctors. Politicians came out at about 30 per cent. and journalists at about 15 per cent. I do not remember where economists came.
I should point out to the noble Lord, Lord Peston, that I have had several approaches in this respect, although I have not heard from the noble Lord, Lord Christopher. I was not aware that he had become a lay member of the GMC after my presidency ended. However, I have had several approaches from existing lay members of the GMC saying how much they wish to see the powers changed by order-making but how much they also wish to see the fundamental structure of the council's functions preserved.
I am sorry to learn that the lay membership of the noble Lord, Lord Christopher, ended on grounds of age. As a former trade union leader, he must have felt a little like the trade union leader who had been in hospital and 1844 received a letter from his executive committee wishing him a speedy recovery by nine votes to six, with five abstentions.
We have had an extremely useful debate. I was surprised to learn from the Minister that, under the Professions Supplementary to Medicine Act, the term "infamous conduct in a professional respect" is still used. That was introduced, on the advice of Lord Justice Lopes, into the medical Acts in the 1890s. However, it was subsequently amended to "serious professional misconduct", which is the term most recently used. I am surprised that that archaic term still persists; I am sure that it needs to be changed.
The Minister said a great deal about the safeguards she proposes to introduce into the Bill by government amendments at Report stage. I also seem to recall that she said the word "regulatory" might well replace the word "professional" and that the issue of transfer of powers, about which we have been very concerned, will be dealt with by way of amendment. Moreover, I understand that the very important question of the interposition of the Privy Council between the self-regulatory bodies and government will be dealt with on Report. Indeed, I believe we have received a number of assurances which the professions and all those involved in self-regulation will regard as being most welcome. In the light of those assurances, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 203 not moved.]
§ The Deputy Chairman of Committees (Lord Strabolgi)
I should point out to the Committee that if Amendment No. 204 is agreed to I cannot call Amendment No. 205.
§ [Amendment No. 204 not moved.]
§ Lord Monkswell moved Amendment No. 205:
§ The noble Lord said: In moving this amendment I shall speak also to Amendment No. 212, which stands in my name and also the names of the noble Lord, Lord Clement-Jones, the noble Baroness, Lady McFarlane, and the noble Earl, Lord Howe.
§ The amendments are by way of a marker to show our respect for midwives—a respect felt by all sides of the Committee and demonstrated by the names of the supporters. I pay tribute to the Royal College of Midwives, which has provided invaluable advice.
§ Midwives are a separate and distinct professional group; in fact, one of the oldest professions serving humankind. They provide invaluable services to expectant mothers at the time of birth and ensure the good health of both mothers and babies. In the context of this debate, midwifery is a separate and distinct profession from nursing. Therefore, Amendment No. 205 seeks to ensure that there will continue to be a separate and distinct register of midwives.1845
§ Amendment No. 212 is a little more complicated. My understanding of the Government's proposals in this part of the Bill—namely, Clause 47 and Schedule 3—is that the order-making power to vary the legislation affecting the self-regulation of the healthcare professions will be brought into play when the professions approach government with proposals for change that previously would have required primary legislation. However, in the cases of nurses, midwives and health visitors, the Government have initiated a review and we have the report of J. M. Consulting before us. The report recommends a new council of nursing and midwifery with equal representation of nurses and midwives on the basis that health visitors are a specialist branch of nursing and would be represented by the nursing side, while midwives as a distinct profession—not all of whom are nurses—would be represented by the midwives side.
§ However, in their response to the report the Government suggest that nurses, health visitors and midwives should be represented equally on the new council. This would mean midwives being a minority. There is a feeling that their professional integrity and distinctiveness would be subsumed over time. Therefore, Amendment No. 212 seeks to ensure that safeguards are written into the Bill to protect the professional integrity of midwives and ensure effective self-regulation of their profession.
§ Although these amendments are presented in good faith, I accept that there are drafting flaws. However, they run counter to the general thrust of the Bill in trying to introduce specific details. I advise the Minister at this stage that they are probing amendments. However, I hope she can provide assurances to midwives, and those of us who are keen supporters of midwives, that their professional integrity is recognised and that their fears that their professional self-regulation may be weakened will be allayed. I beg to move.
§ 6.30 p.m.
§ Lord Clement-Jones
I speak briefly but emphatically in support of the noble Lord, Lord Monkswell, in putting forward these amendments. The Minister has made us aware of discussions and consultations that have yet to take place. I certainly do not wish to pre-empt them. If the Government have not yet taken a view on these matters, so much the better. It would be helpful if the Minister can at least indicate the state of thinking in this area. As the noble Lord, Lord Monkswell, made clear, one of the problems is that the recommendations of J. M. Consulting in respect of health visitors have not been accepted by the Government, and therefore in a sense the balance on the new body is not to the liking of midwives.
As regards the retention of the midwifery committee, I am not sure what the Government's thinking is. But clearly midwives feel strongly that it must be retained. We have talked about control over education, training and standards of practice. Midwives believe that they constitute a separate profession and that they are best regulated by a committee under the overall council, as the noble Lord, Lord Monkswell, made clear. The 1846 retention of the midwifery register, if nothing else, goes absolutely to the heart of the matter. Midwives feel strongly that it should be retained.
I realise that it is easy to view many of the debates we have had as representing the professions pleading their own self-interest. However, I do not believe this is simply a matter of self-interest. I believe it is a matter of public interest. I have a huge regard for the midwifery profession, not least because my wife has been a consumer of their services in the past year. We need to maintain standards in this area. We do not want midwives to be subsumed into the generality of a much bigger profession. That must be seen as a threat to them. I hope that the concerns of midwives will be accommodated in the course of the discussions which the Government will pursue.
I too wish to support these amendments. With the prospect of the repeal of the Nurses, Midwives and Health Visitors Act 1997, I think it is terribly important that safeguards are put in place to protect the essential features of the regulatory regime for midwives. This Bill provides an ideal opportunity to do so. Midwives are the third largest professional group in medicine. They can diagnose, prescribe for, and treat a number of specific conditions without reference to a GP, and as a result they are a profession which lays particular emphasis on training and continuous professional development. It would be most unsatisfactory if there were ever any confusion or uncertainty over which education and practice issues were relevant to midwifery.
There is absolute unanimity in the profession about wanting to see acknowledgement of midwifery having control over its own professional destiny and in particular its own education and practice. That can really only be done by strengthening the representation of midwifery on the central council. Whether you achieve that by having a separate midwifery committee, or by having equal representation of nurses and midwives on the council, is open to legitimate debate. I hope that the Minister will at least be receptive to the thrust of these amendments.
§ Baroness McFarlane of Llandaff
I too wish to speak to the two amendments which bear my name. I regard them as probing amendments because I believe they may well be overtaken when we arrive at a firmer resolution of what is envisaged for the successor body to the UKCC. I have tried to do the arithmetic with regard to the successor body with perhaps 24 members, a third of whom will be lay members, with representatives from four countries. I do not know whether the Minister is prepared to do the arithmetic and divide up the successor council, rather like Solomon wanting to divide the baby between the two ladies. She will need the wisdom of Solomon in this regard. We need to be careful that the particular professional expertise of midwives is guarded. We have already heard that they undertake considerable independent clinical decision-making.
§ Baroness Hayman
Our brief debate on this issue is analogous to the debate we had on chiropody and 1847 podiatry. We are debating the contribution of important professional groups. In this Bill we establish an enabling structure to allow successor bodies to be put in place. I cannot give the Committee chapter and verse on every detail of that successor body. However, the Government fully understand and share the aims that have been expressed of preserving the strong identity of midwifery as a separate profession within a joint regulatory structure. Midwives have been at the forefront of developing services which are more focused on what patients want and need. They rightly expect to have a strong and decisive voice in the regulation of their own profession. That is why we made clear in our response to the recent review of the Nurses, Midwives and Health Visitors Act that any proposals we put forward for legislation to replace that Act will provide for the separate registration of midwives. The new council will have a duty to make rules on midwifery practices. There will be equality of elected membership of the council between the professions. However, I shall not follow the noble Baroness, Lady McFarlane, into the judgment of Solomon which, as she rightly says, we may need as regards the allocation of places on the council. Perhaps most importantly, the structure and rules for the committees should ensure that midwives cannot be outvoted by the other professions on matters solely affecting midwifery. That is an extremely important point, as indeed is the recommendation, which we support, that the council should create a post of director of midwifery regulation.
As I have said many times today, it is our intention to repeal the whole of the 1997 Act and abolish the UKCC. We shall bring forward an amendment to enable this. We intend to consult fully on the detailed proposals for the replacement legislation. As the noble Lord, Lord Clement-Jones, recognised, that process has started. It would be wrong, through this amendment or through any comments I make on further detail, to pre-empt that consultation. However, I am happy to repeat the commitment that we shall not bring the repeal of the Nurses, Midwives and Health Visitors Act into effect until we are ready to put in place a new scheme that commands public and professional confidence. We shall consult with each of the professional groups involved to ensure that we strike the right balance between the multi-professional overall body and the representation of individual professions, particularly the midwives, in areas relating to their own practice. I hope this provides some reassurance to the noble Lord.
§ Lord Monkswell
I thank everyone who has taken part in the debate on this amendment. I thank particularly my noble friend the Minister. I think we are all reassured by the specific assurances she has given from the Front Bench. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 206 to 213 not moved.]1848
§ Baroness Wilcox moved Amendment No. 214:
Page 52, line 20, at end insert (", and
(c) consult patients and carers.").
§ The noble Baroness said: In moving the amendment I must declare an interest. I am the president of the National Federation of Consumer Groups. Having been involved in the consumer representation world over a number of years, I have taken a considerable interest in the way the professions organise themselves. In this House I raised the issue of professional rules during the passage of the Competition Bill in the previous Session. Professions perform important services for us all. This is particularly so in the field of healthcare where the professions try to keep us healthy, look after us and treat us when we are ill. But by their very nature professions can have considerable power over those to whom they provide a service. And we all know that things can go wrong, sometimes disastrously so.
§ Regulation of the professions is therefore important for the consumers of their services. In healthcare, bodies such as the General Medical Council, the General Dental Council and the General Osteopathic Council provide statutory self-regulation, as we have heard so well expressed today. Those who use the services of the professionals need to be confident that they are adequately trained; that they operate to minimal standards of competence; that clients have somewhere to go if things go wrong; and that appropriate disciplinary action is taken if a member of the profession is found guilty of misconduct.
§ Each profession is regulated under a law specific to it. This has led to anomalies developing between different professions, which everyone acknowledges need rectifying. For example, the General Medical Council has powers to act where doctors' performance is not up to standard, while the General Dental Council does not have such powers. Some councils have powers to act where the health of a professional is causing poor performance; others do not. And, worryingly, many professions—psychologists, counsellors, psychotherapists and many working in complementary therapies—have no statutory regulation at all.
§ Changes to these schemes currently require primary legislation. As we all know, relying on spaces in the legislative timetable is a somewhat precarious and inflexible process. The provisions in the Bill to enable these changes to be made through an order rather than primary legislation are very welcome.
§ My amendment, which is supported by the National Consumer Council and other organisations within the Patients' Forum, relates to the process of making the order. Paragraph 9 of Schedule 3 requires the Secretary of State for Health to lay a draft order before Parliament. He is required to publish the draft order and consult professional bodies about the draft. The purpose of my amendment is to require the Secretary of State to consult also with users and carers as well as the professions. The regulation of professionals has implications for the users of their services and any changes must command their confidence.1849
In support of my case, perhaps I may quote what the Government said in the White Paper, The new NHS Modern Dependable:
The Government will continue to work with the professions, the regulatory bodies, the NHS and patient representative groups to strengthen the existing systems of … self-regulation by ensuring that they are open, responsive and publicly accountable".
I believe that my amendment is in the spirit of that very welcome statement. Professional self-regulation is not just about the professions but about the experiences and needs of patients and carers too. They have an important view. Statutory provision for consultation should include them on the same basis as the professionals. I beg to move.
§ Baroness Pitkeathley
I rise to support the spirit of the amendment. It is in accord with the huge amount of progress that has been made in recent years in making the patient, the user and the carer infinitely more central to healthcare provision than has hitherto been the case. The amendment is very much in that spirit in recognising that the experience of the patient and the carer should be important to all the professional deliverers of that service.
§ 6.45 p.m.
§ Baroness Hayman
I am grateful to both noble Baronesses who have spoken for allowing me the opportunity to say that, in a sense, this is the counterweight to some of the discussions we had earlier and a recognition that we should not underestimate the importance of the views of those who are at the receiving end of professional services. Opening up government and public services and making them more responsive to the public and public service users' views is a key theme for the Government. We have made our commitment clear in the White Paper, as the noble Baroness, Lady Wilcox, pointed out. The Government are working to attain more effective public and user input into the development of policies. For instance, they have developed with the help of some national patient organisations a set of principles to follow involving user organisations in the development of health service policies. They have also established a standing advisory group for consumer involvement in research and development which includes user-group representatives to advise on the best way to involve consumers more fully in the department's research programmes. In the White Paper and in our discussion document A First Class Service we made it clear that we expected the statutory regulatory bodies to work in partnership with the Government, the NHS and patient representative groups to strengthen the existing systems of professional self-regulation by ensuring that they are open, responsive and publicly accountable.
As we have said many times this afternoon, protection of patients is at the heart of professional self-regulation. It is important that we consult with patient representative bodies on draft orders and it is certainly our intention so to do. There are, of course, a number of interested bodies and parties which should be 1850 consulted on a draft order. We will work closely with them in developing those orders and consult fully according to the processes I described earlier today.
As ever, we have returned to a recurring theme of some of the Committee's debates—how we avoid listing the people to be consulted in any set of circumstances and the dangers of making that list exclusive. However, I suspect that we have been too paring in the provisions in this regard. We have made it clear that there is a responsibility to consult the professions. Equally, we should make the necessity of consulting patient representatives clear on the face of the Bill. If it is possible to draw up something suitable, and if the noble Baroness would be content, I should like to give some further thought to this matter and see whether at some stage in the further progress of the Bill we can bring forward a suitable amendment.
§ Baroness Wilcox
I am grateful to the Minister for that very heartening response. I should like also to thank the noble Baroness, Lady Pitkeathley, for supporting the amendment. It is only recently that she represented so well the country's carers. I am very happy to have her support at this time.
Given what the Minister has said, of course I will be happy to withdraw my amendment at this time. I look forward at the next stage to hearing what she has managed to come up with to fulfil all my dreams. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 215 to 217 not moved.]
§ Schedule 3 agreed to.
§ Clauses 48 to 50 agreed to.
§ Schedule 4 [Amendments of enactments]:
§ Lord Harris of Haringey moved Amendment No. 217A:
§ Page 62, leave out lines 22 and 23.
§ The noble Lord said: This is unashamedly a probing amendment. I expect that we shall be told later that it goes to the heart of the Bill in a deeply unhelpful way in that it deals with the question of the abolition of extra-contractual referrals. The amendment would mean that patients whose quality of life is at risk because of severe pain or loss of mobility or livelihood, would still have the option of being referred outside local service agreements between health authorities and trusts, and that trusts could be reimbursed for treating such patients.
§ Before the introduction of the internal market by the previous government, GPs were free to refer patients to any NHS consultant anywhere in the country. It was genuinely a National Health Service. The 1990 Act introduced a two-tier system. We were assured at the time that somehow that increased patient choice. The reality was that it restricted patient choice, because there was less of an opportunity for patients to discuss with their GPs the precise referral that would be most appropriate for their individual circumstances.
§ Under the present arrangements for 40 per cent. of the population GP referrals are restricted by a mechanism known as extra-contractual referrals. It is the mechanism by which trusts are reimbursed if they treat 1851 patients referred outside health authority contracts by non-fundholding GPs. The system has been extremely complicated, poorly explained, and often poorly funded. However, it meant that there was an appropriate mechanism which allowed many thousands of patients to receive timely and/or specifically appropriate treatment for their needs when they were faced with a rare or complicated illness.
§ My understanding of the Bill as currently drafted is that it proposes to replace extra-contractual referrals with a new system to be known as out of area treatments (OATS) by means of secondary legislation. It is clear from the Government's consultative paper, The new NHS: guidance on out of area treatment, that the new system will mean a dramatic reduction in informed choice for patients. That will clearly affect a number of groups of patients, particularly elderly people whose quality of life may be severely affected by pain and mobility, some of whom currently face waiting times of three-and-a-half years for admission to hospital for operations such as hip and knee replacement or cataract removal; or those patients whose lives are at risk because they are on long waiting lists; or patients who have good reason to want to be referred to a consultant or a centre which specialises in a rare or complicated illness not covered by the new specialised commissioning arrangements.
§ The purpose of the amendment is to examine how we can ensure that the needs of those patients are met, that there is flexibility and that we can perhaps return to a system where there is genuine patient choice exercised by dialogue and partnership between the GP and the individual patient concerned. I beg to move.
§ Baroness Hayman
I am grateful to my noble friend for the way in which he introduced the amendment, and for his recognition that, were it to be accepted, it would set in tablets of stone the current arrangements for extra-contractual referrals. I believe that he accepts that the current arrangements are not satisfactory and cause difficulties for patients, and I urge him not to press the amendment. In doing so, I am happy to explain in rather more detail the arrangements that we are putting in place to replace extra-contractual referrals.
Extra-contractual referrals were "one-off' arrangements whereby an NHS trust provided care for someone and that care was not covered by a contract with the patient's health authority. We made a clear commitment to abolish the internal market and to replace it with modern arrangements founded on the principles of co-operation and partnership.
In the ECR system, individual patients became the subject of sometimes heated debate between GPs, NHS trusts and health authorities about whether they were covered by a "contract" and, if not, whether their care would be paid for. Sadly, the focus was sometimes not on building high quality services for patients, which is our clear purpose, but rather on opportunity and "playing the market". The abolition of ECRs signals a clear end to the unnecessary anxiety for patients and the excessive bureaucracy that symbolised the internal market.
1852 The new arrangements for commissioning patient services will ensure that all referrals to hospitals are covered by either the new long-term service agreements or the new arrangements for access to specialist services. The new arrangements are intended to strike a balance between coherent planning for service development and responsiveness to individual needs.
Health authorities and their shadow PCGs, NHS trusts and clinicians, are already putting a great deal of effort into shaping plans for their local health service through the local health improvement programmes. It is our intention that long-term service agreements should be developed through dialogue between the clinicians concerned and with important input from users. More sensitive commissioning will ensure that the new arrangements will also be able to take account of the views of users.
New arrangements for planning and commissioning specialist services, which were often the cause of ECRs, are also being developed. Attempting to support complex services through funding from ad hoc ECRs was never the way to secure good quality patient services. That is why, in The new NHS, we charged the regional offices of the NHS Executive with ensuring that better arrangements are in place, based on clear, long-term service agreements for these services to which all concerned are committed. These are intended both to promote fair access for patients and to support clinical staff in developing the most suitable and effective care. Where there are consistent patterns of referrals to a service, whether a specialised service or more locally, it is right that that should be reflected through service agreements. It has already been possible to build some 90 per cent. of what were ECRs into service agreements for the future.
However, there are cases that do not fit that pattern—emergencies away from home, or a rare condition needing specialist treatment. Such cases will be covered by the new arrangements for out of area treatments. Where a hospital receives referrals of this sort, that pattern will be reflected in the allocation of the health authority which is its main commissioner, and that health authority will build this funding into its own service agreement with the hospital to cover these ad hoc cases. That will be achieved by directions.
OATs will be within service agreements but not constrained by them and the referring health authority will not be constrained by past spending patterns. OAT patients will be treated under the same agreement and on exactly the same basis as the main commissioner's other patients. They will be treated according to clinical priority and covered by the standards for quality and effectiveness specified in the main commissioners service agreement. Freedom to refer will be enhanced through OATs as prior approval will not be required as was the case with ECRs.
There will be no more quibbling as to whether or not patients are covered by "contracts", and no more chasing invoices around the system. The freedom of GPs to refer and the freedom of trust clinicians to admit according to clinical priority within the overall resources available to them are safeguarded.
1853 Allowing ECRs to continue, as the amendment proposes, would mean letting patients continue to be piggy-in-the-middle while health service managers argue about who will pay. I hope that the former provisions enabling ECRs to continue are now clearly redundant, and that my noble friend will feel reassured that we have in place better arrangements to replace them.
§ Lord Harris of Haringey
I am grateful to my noble friend for her reply. The statement that there will be no requirement for prior agreement before an out of area treatment is approved is extremely welcome, as is the expectation that there will be greater flexibility. I shall need to read with some care the precise mechanism that my noble friend describes. I am not sure that I fully understand how it would work for a patient sitting on the opposite side of the table to the GP who is making the referral. However, on the basis of the reassurances given, I am happy at this stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Harris of Haringey moved Amendment No. 218:
Page 63, line 8, at end insert—
("( ) In section 15 (information and consultation)—
§ The noble Lord said: This amendment relates to a very different topic. It seeks to give the Health Service Commissioner (the ombudsman) greater discretion to pass directly to other bodies concerns arising from individual complaints to him where he judges that there may be a risk to the health or safety of patients.
§ The bodies to which he might pass on such concerns include the professional regulatory bodies which we have spent so much time this afternoon discussing, such as the General Medical Council, the General Dental Council, and the UK Central Council for Nursing, Midwifery and Health Visiting, as well as the future commission for health improvement which the Bill seeks to establish.
§ The Committee may be surprised to learn that the present wording of the Health Service Commissioners Act 1993 (as amended) severely restricts the circumstances in which the ombudsman may disclose, say to the General Medical Council, concerns arising from a complaint to him. He may, for example, not do so if he decides not to investigate the complaint which gave rise to the concern, or if the matter of concern falls to be disclosed in one of his reports. The result is that the ombudsman has less scope to bring concerns to the GMC or other such bodies than has a private citizen. My amendment seeks to put that right.1854
§ I do not believe that this amendment will change current government policy about the ombudsman's powers. However, it removes an undesirable effect—quite possibly an unintended effect—of the current wording of the legislation. The deficiency in the present legislation is not an academic point. Since 1996 the ombudsman has had powers to consider complaints about the exercise of clinical judgment. The ombudsman tells me that on several occasions he has had worries, arising from individual complaints to him, about the actions of individual doctors who were still practising. He wanted to tell the GMC about them as soon as possible, but had to resort to intermediaries to do so. Clearly, that cannot be right or sensible.
§ I trust that I do not need to labour the arguments to persuade the Committee that the amendment is in the interests of patients. I am motivated by my 12 years' experience as director of the Association of Community Health Councils. It is quite unacceptable for patients if the ombudsman is worried that their doctor might pose a risk to their health or safety, or indeed to other patients, but is not in a position to tell the GMC directly. I understand that recent sad cases underline that we cannot be complacent about the present situation. We must ensure that concerns can be acted upon speedily.
The ombudsman has sought my support in proposing this amendment, and I am glad to give it. He has also written on the matter to the Select Committee on Public Administration in another place and members of the committee have questioned government witnesses about it. The amendment also has the strong support of the current president of the General Medical Council, Sir Donald Irvine. I notice that the noble double act, the former presidents of the General Medical Council, is no longer here. Sir Donald Irvine has written to the ombudsman saying:
I know that you see cases where the specific circumstances of the particular matters you are investigating cause you to have serious concerns about the general standard of a doctor's professional skills, knowledge or attitudes. It must be in the public interest for you to be able to draw those concerns to our attention, so that they can be properly investigated under our performance procedures".
A similar letter has been sent to the ombudsman by the president of the General Dental Council, saying:
we would support the removal of harriers to appropriate exchange of information where the public is potentially at risk. Whilst clearly this is an area where proper thought must be given to appropriate safeguards, nevertheless, we would have no difficulty in your discretion in this area"—
that is the ombudsman's area-
being less circumscribed".
The amendment concerns the safety of patients and is supported by the medical profession's regulatory body and by the dental profession's regulatory body. It gives wide discretion to the ombudsman, but I suppose that is what an ombudsman is for. I am confident that the Committee will agree that the public interest is best served by allowing the ombudsman the wider powers sought by the amendment. I beg to move.
§ 7 p.m.
§ Baroness Hayman
My noble friend has raised a very important issue. The Government are aware that 1855 the existing statutory limitations on the Health Service Commissioner in the area that he has outlined have been a matter of grave concern to the commissioner for some time. I agree with him that it is entirely right and consistent with the wide aims of our proposals for reform of the National Health Service that if the commissioner obtains information which suggests that the health or safety of patients may be at risk, he should be able to pass that information on to the appropriate authorities. Therefore, I would certainly accept the principle behind my noble friend's amendment.
However, I should point out that the Health Service Commissioner is in a delicate position. Complainants, and others who may be called on to provide information to him, do so in the expectation that it will he kept confidential. For many that is a crucial element of the commissioner's work. Of course, the health and safety of patients must be paramount. But I am sure that the Committee would agree that we need to consider carefully the balance between giving the commissioner the very wide discretion which would result from my noble friend's amendment, and the need to maintain the confidence of complainants and those complained against. Indeed, we had a slightly tangential discussion about confidentiality issues and the need to be careful about them on an earlier amendment in Committee.
We need to ensure that we get the balance right. For those reasons I cannot accept the amendment as tabled. However, as I have said, we accept the principles behind my noble friend's proposals. I shall certainly undertake to give urgent consideration to whether we can use the opportunity offered by this Bill to effect the changes in the Health Service Commissioner's powers that he and my noble friend would wish to see.
§ Lord Harris of Haringey
I am grateful to the Minister for her reply. While I understand the point about individual confidentiality by complainants, there must be ways by which that can be circumscribed by very clear consent being given. We have to ensure that the public interest is protected in such cases.
Clearly, the ombudsman remains concerned about the limits to his powers to make referrals in appropriate cases. While I am delighted to hear that my noble friend intends to look at this urgently, I hope that it will be possible to bring forward an amendment, suitably worded, on Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedules 4 and 5 agreed to.
§ Clause 51 agreed to.
§ Clause 52 [Commencement]:
§ [Amendments Nos. 219 to 221 not moved.]
§ On Question, Whether Clause 52 shall stand part of the Bill?
§ The Earl of Mar and Kellie
In the absence of this group of amendments I want to ask about the constitutional position of the Bill vis-à-vis the Scottish Parliament. Next on the Order Paper is the Water Industry Bill which is a Bill that the Scottish Parliament 1856 does not have to take up if it does not wish to. Therefore, I want to ask approximately the same question. Will the Scottish Parliament have to accept the whole of the Bill or will it be devolved unenacted as regards Scotland?
§ Baroness Hayman
We have dealt in general terms with the inter-relationship with the Scottish Parliament for the provisions of this Bill. We have made it clear that the Scottish proposals respect the differences in Scottish traditions and experience. The argument has been made that any change in Scottish health legislation should be left to be dealt with by the Scottish Parliament, rather than being brought before this Chamber and another place. We have explained why the Government take that view on the items that are dealt with in this Bill. It is important that we take action so that progress can be completed on areas where we are clear that progress can be made.
Of course, on 1st July Scottish Ministers will take over responsibility for functions that do not relate to reserved matters, such as professional self-regulation, with which we have been dealing this afternoon. That includes the NHS in Scotland. The Scottish Parliament will assume legislative competence for those matters on the same date. The power to make commencement orders relating to the Scottish provisions in the Bill will automatically pass to Scottish Ministers on 1st July. Any commencement orders relating to the Scottish provisions before that date would be for UK Government Ministers.
I hope that answers some of the questions of the noble Earl. My noble friend Lord Macdonald of Tradeston will be happy to give more details at a further stage of consideration, when I expect there will be a debate on some of these issues.
§ Clause 52 agreed to.
§ Clauses 53 and 54 agreed to.
§ House resumed: Bill reported without amendment.