HL Deb 18 March 1999 vol 598 cc912-50

8.20 p. m.

Consideration of amendments on Report resumed.

Clause 42 [Expenditure of Health Boards and other bodies]:

Lord Macdonald of Tradeston moved Amendment No. 77A:

Page 32, line 21, at end insert ("or (e) remuneration which is referable to the cost of drugs for which the Health Board is accountable in that year (whether paid by it or by another Health Board)").

The noble Lord said: My Lords, in speaking to Amendment No. 77A I shall also speak to Amendments Nos. 77B, 77C and 77D. These amendments are the Scottish equivalent to government Amendments Nos. 13, 15 and 17 debated and approved by the House last Monday.

In brief, the amendments refine the definition of the prescribing costs that will be included in a health board's unified budget, the provisions for which are made by Clause 42 of this Bill.

Your Lordships have already considered the principles behind the amendments at some length. I shall refrain from going over that ground in detail again today. However, to recap, the provisions introduced by the amendments need to be considered against the introduction of funding health boards through the concept of unified budgets.

The White Paper, Designed to Care, announced the introduction of unified budgets to provide a single financial envelope to cover the commissioning of hospital and community health services, primary care prescribing and investment in general practice infrastructure.

At present the funding streams for such items are, with limited exceptions, allocated and managed separately from each other. Clause 42 introduces provisions for Scotland that unify the hospital and community health service funding stream with that of general practice infrastructure. The amendments before you now bring primary care prescribing into the financial envelope and, in so doing, will give health boards and, in turn, Scottish primary care trusts, greater flexibility in deciding the most appropriate balance between the three areas of expenditure.

As explained when the equivalent English amendments were introduced earlier this week, while the effect of the amendments is to bring all prescribing expenditure within a unified cash limit, they do not put a cash limit around prescribing expenditure itself. Health boards, and through them Scottish primary care trusts, will be able to transfer funds into and out of their prescribing cost provision to reflect the relative priorities and the financial needs of the local area.

On Monday, the noble Baroness, Lady Carnegy, asked if primary care infrastructure resources in Scotland would be protected within the unified budget. I have written to her, but to put the matter on the record I can reassure your Lordships that those resources will be protected in Scotland as they will be south of the Border.

The amendments themselves are essentially technical. Their primary effect is to make health boards responsible for the cost of drugs prescribed by the GPs in their areas and not, as at present, for the cost of drugs dispensed in their areas. However, they also provide for the Secretary of State to make appropriate funding flow arrangements between health board areas to ensure that dispensing practitioners continue to receive their remuneration in exactly the same way as at present.

The amendments complete the provision for introducing unified budgets in Scotland. That will give health boards and, in turn, primary care trusts in Scotland increased financial flexibility to secure more cost-effective care and greater value from the total resources available. I therefore commend these amendments to the House. I beg to move.

Baroness Carnegy of Lour

My Lords, I thank the Minister for the extremely clear letter that he wrote to me. He wrote very promptly and explained everything very well.

I have shown the letter to the British Medical Association—he may also have done that—and it was concerned about the matter. The matter has been considered by bodies in Scotland, and they too are reassured, although there are two questions which I believe the noble Lord will find easy to answer.

First, they want assurance of the ability of local health co-operatives to go back to the primary care trust if they run out of money for prescribing. The arrangements that the noble Lord has just described will mean that individual doctors in Scotland will be able to prescribe all the necessary medication to fulfil the clinical needs of their patients. It would be helpful if the noble Lord could reassure them on that.

Secondly, when the unified budget comes into being, will savings from the prescribing budget remain for use with the primary care trust, or will they revert to the health board for use, for example, in acute hospitals? Perhaps it may not be possible to answer that immediately. I was not able to give the noble Lord notice of that question. I repeat: will any money saved on prescribing revert to the health board, or will it be used in acute hospitals; or can it be retained within primary care?

Lord Macdonald of Tradeston

My Lords, I can assure the noble Baroness, Lady Carnegy, that if the local healthcare co-operatives run out of money they will be able to turn to the primary care trust and ensure that their needs are properly met.

On the second question, I am advised that any savings will remain within the primary care trust resources.

On Question, amendment agreed to.

Lord Macdonald of Tradeston moved Amendments Nos. 77B, 77C and 77D:

Page 32, line 22, leave out ("paragraph (b), (c) or (d)") and insert ("paragraphs (b) to (e)").

Page 33, line 4, at end insert— ("(11) In this section and section 85AB, "drugs" includes medicines and listed appliances (within the meaning of section 27). ").

Page 33, line 4, at end insert—

("Further provision as to expenditure on drugs. 85AB. —

  1. (1) For each financial year, the Secretary of State shall apportion, in such manner as he thinks appropriate, among all Health Boards the total of the remuneration referable to the cost of drugs which is paid by each Health Board in that year.
  2. (2) A Health Board is accountable in any year for remuneration referable to the cost of drugs to the extent (and only to the extent) that such remuneration is apportioned to it under subsection (1).
  3. (3) Where in any financial year any remuneration referable to the cost of drugs for which a Health Board is accountable is paid by another Health Board, the remuneration is to be treated (for the purposes of this section) as having been paid by the first Health Board in the performance of its functions.
  4. (4) The Secretary of State may, in particular, exercise his discretion under subsection (1)—
    1. (a) so that any apportionment reflects, in the case of each Health Board, the financial consequences of orders for the provision of drugs, being orders which in his opinion are attributable to the Board in question;
    2. (b) by reference to averaged or estimated amounts.
  5. (5) The Secretary of State may make provision for any remuneration referable to the cost of drugs which is paid by a Health Board other than the Health Board which is accountable for the payment to be reimbursed in such manner as he may determine.
  6. (6) The Secretary of State shall determine what remuneration paid by Health Boards to persons providing pharmaceutical services is to be treated for the purposes of section 85AA and this section as remuneration referable to the cost of drugs. ").

On Question, amendments agreed to.

8.30 p. m.

Lord Macdonald of Tradeston moved Amendment No. 78:

After Clause 45, insert the following new clause—

("Indemnity cover

INDEMNITY COVER FOR PART II SERVICES .—(1) After section 28B of the 1978 Act there is inserted—

"Indemnity cover.

28C.—(1) Regulations may make provision for the purpose of securing that, in prescribed circumstances, prescribed Part II practitioners hold approved indemnity cover.

(2) The regulations may, in particular, make provision as to the consequences of a failure to hold approved indemnity cover, including provision—

  1. (a) for securing that a person is not be added to any list unless he holds approved indemnity cover;
  2. (b) for the removal from a list prepared by a Health Board of a Part II practitioner who does not within a prescribed period after the making of a request by the Health Board in the prescribed manner satisfy the Health Board that he holds approved indemnity cover.

(3) For the purposes of this section—

and a person holds approved indemnity cover if he has entered into a contract or arrangement which constitutes approved indemnity cover.

(4) The regulations may provide that a person of any description who has entered into a contract or arrangement which is—

  1. (a) in a form identified in accordance with the regulations in relation to persons of that description; and
  2. (b) made with a person or persons so identified,
is to be treated as holding approved indemnity cover for the purposes of the regulations."

(2) In section 19A of the 1978 Act (medical lists), at the beginning of subsection (3) there is inserted "Subject to any provision made under section 28C".

(3) In section 25 of that Act (arrangements for provision of general dental services), in subsection (2)(b), the word "and" before sub-paragraph (iii) is omitted and after that sub-paragraph there is inserted "; and

(iv) any provision made under section 28C".

(4) In section 26 of that Act (arrangements for provision of general ophthalmic services), in subsection (2)(b), after "practitioners" there is inserted "and any provision made under section 28C". ").

The noble Lord said: My Lords, this amendment stands in the names of myself and my noble friend Lady Hayman. It applies to Scotland and is the same in all essential respects as Amendment No. 19, which was moved by my noble friend Lord Hunt and debated thoroughly on Monday evening. With your Lordships' leave I shall, therefore, be brief.

The Government's intention is to ensure that GPs, dentists, pharmacists and optometrists practising in family health services in Scotland are able to meet any damages that might be awarded against them in cases of death or personal injury caused to their patients. This includes cover for other persons prescribed in relation to the practitioner such as employees, assistants or deputies. These practitioners employed in NHS trusts are automatically covered by NHS indemnity.

As in other parts of the UK, the vast majority of practitioners in Scotland already act responsibly by arranging suitable indemnity cover for their work. By ensuring that every relevant professional is covered in future, this amendment seeks to address the small minority of practitioners in Scotland who are not so responsible. The scheme would work in the way described by my noble friend on Monday, and I do not propose to repeat what has already been covered.

This amendment will enable patients to be protected and properly compensated on those rare occasions when something goes wrong. Where a patient is deserving of compensation, we believe that he or she should be able to receive it.

Perhaps I may now reply to a question of which the noble Baroness, Lady Carnegy, has been kind enough to give me notice. She wanted to know why "indemnity" is referred to rather than "membership of a medical defence organisation". The intention behind this provision is to ensure that all practitioners are indemnified so that a patient can be sure of getting proper compensation, when that is warranted. As my noble friend explained on Monday, that indemnity might be obtained from a range of sources. It would not be appropriate in this Bill to limit how such indemnity should be obtained. This is especially so as the clause covers those providing ophthalmic and pharmaceutical services as well as doctors and dentists. The principle underlying the amendment has been warmly welcomed by your Lordships' House. I beg to move.

Baroness Carnegy of Lour

My Lords, again, I thank the Minister very much. He has partly answered my question in advance in relation to why the word "indemnity" is used when the phrase "medical defence organisation membership" would be a better description. This point may also interest the noble Baroness, Lady Hayman. It has been pointed out to me that medical defence organisations have the discretion as to whether or not to assist in negligence claims in certain circumstances and that because they have that discretion, this is not really what is normally understood to be "indemnity". I think that this is an interesting point, which the Government may want to consider. I do not expect an answer now, but the Government may want to alter both parts of the Bill to meet that point if the provisions are not in order, although they may be.

Lord Macdonald of Tradeston

My Lords, I thank the noble Baroness for that point, which we shall certainly consider.

On Question, amendment agreed to.

Clause 46 [Disqualification of Part II practitioners]:

Lord Macdonald of Tradeston moved Amendment No. 78A:

Page 35, line 29, leave out ("29E") and insert ("29C").

The noble Lord said: My Lords, this amendment simply corrects an inappropriate cross-reference in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Astor of Hever moved Amendment No. 79:

Page 38, line 10, at end insert— ("( ) After section 30 of the 1978 Act (as substituted by subsection (2)) there is inserted— 30A. The Tribunal shall make, and publish, an annual report to the Council on Tribunals. "").

The noble Lord said: My Lords, this amendment brings the NHS tribunal into line with virtually all others in the tribunal system. The Council on Tribunals makes reports on the effectiveness of particular tribunals and may make recommendations as to improvements that can be made. Given the importance of the NHS tribunal, it would seem sensible for it to make an annual report to the Council on Tribunals in order that its workings may be exposed to expert scrutiny. That would also ensure that recommendations can be made to keep its work up to date. It would also ensure a measure of consistency between the manner in which it operates and that of other tribunals.

An annual report would be in the public interest. The NHS employs more people than any other public sector organisation and is the one part of the welfare state with which almost everyone comes into contact at some stage. That tribunal should not sit apart from the rest of the tribunal system and it should not be allowed to operate without being subject to a reasonable level of public and expert scrutiny. I beg to move.

Lord Macdonald of Tradeston

My Lords, the Council on Tribunals, through its Scottish committee, will be aware of any cases heard by the NHS tribunal as it has the right to attend any hearings before the NHS tribunal. Its own report contains appropriate information about the NHS tribunals. The Scottish committee has given us no indication that it would require an annual report. The proceedings before the tribunal must be held in private unless the practitioner has applied for the inquiry to be held in public. The Secretary of State already has a duty to publish any decisions of the tribunal, and such cases are likely to remain relatively rare, because it is only a very small minority of practitioners who commit fraud.

Given those arrangements, I do not believe there is a need for the tribunal in Scotland to make and publish an annual report to the Council on Tribunals. The value of such a report would be limited anyway, as I hope I have made clear, as it would be able to provide no more information than will be available through established means.

Lord Astor of Hever

My Lords, I thank the Minister for that helpful reply. Obviously, I shall read carefully what he said but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macdonald of Tradeston moved Amendment No. 79A:

After Clause 46, insert the following new clause—

RECOVERY OF CHARGES AND PAYMENTS (". — (1) After section 99 of the 1978 Act there is inserted— "Recovery of charges and payments. 99ZA. —

  1. (1) Where goods or services to which this section applies are provided and either—
    1. (a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or
    2. (b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,
    the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.
  2. (2) That amount—
    1. (a) in a case within subsection (l)(a): is the amount of the charge or (where it has been reduced) reduction;
    2. (b) in a case within subsection (l)(b), is the amount of the payment.
  3. (3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.
  4. (4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)—
    1. (a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;
    2. (b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it:
    3. (c) on the ground that he or another has made a particular statement, when the person in question his not made such a statement or the statement made by him is false.
  5. 919
  6. (5) In this section and section 99ZB, "responsible authority" means—
    1. (a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;
    2. (b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable,
    3. (c) in a case within subsection (l)(b), the person who made the payment.
  7. (6) But the Secretary of State may by directions provide for—
    1. (a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;
    2. (b) the functions of any responsible authority under this section and section 99ZB,
    to be exercised on behalf of the authority by another health service body.
  8. (7) This section applies to the following goods and services—
    1. (a) dental treatment and appliances provided in pursuance of this Act;
    2. (b) drugs and medicines provided in pursuance of this Act;
    3. (c) the testing of sight;
    4. (d) optical appliances;
    5. (e) any other appliances provided in pursuance of this Act.
99ZB. —
  1. (1) Regulations may provide that, where a person fails to pay—
    1. (a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or
    2. (b) any amount recoverable from him under section 99ZA,
    a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.
  2. (2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of—
    1. (a) £100;
    2. (b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.
  3. (3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.
  4. 920
  5. (4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.
  6. (5) The further sum must not exceed 50 per cent, of the amount of the penalty charge.
  7. (6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.
  8. (7) But a person is not liable by virtue of a penalty notice—
    1. (a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or
    2. (b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.
  9. (8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act). ".
(2) In section 105(3) of the 1978 Act (Parliamentary procedure for certain regulations) after "endowments)" there is inserted "or orders under section 99ZB(3)". ").

On Question, amendment agreed to.

Clause 47 [Regulation of health care and associated professions]:

Lord Morris of Manchester moved Amendment No. 79B:

Page 38, line 14, at beginning insert— (" ( ) Her Majesty shall by Order in Council make such provision relating to the regulation of the profession of chiropody and podiatry as set out in paragraph 1A of Schedule 3. ").

The noble Lord said: My Lords, I beg to move Amendment No. 79B. In moving the amendment, I shall also be speaking to the other amendments standing in my name. I have an interest to declare in the debate as president of the Society of Chiropodists and Podiatrists, but the office is honorary and involves no financial interest.

My noble friend will recall that both at Second Reading and in moving my amendments in Committee I raised with her the society's concerns that the Bill made no specific mention of protection of title or of any definition of the future regulatory regime. I made it clear that state registered chiropodists/podiatrists, for whom the society speaks, are wholeheartedly in support of the Government's stated aim of strengthening self-regulation to protect the public. Not unnaturally their principal concern is to ensure that future practice matches current precept in the case of their profession.

My noble friend's response in Committee to my amendment on protection of title on 4th March is welcomed by the society, as I said it would be when withdrawing the amendment. But it is less happy with the response to the amendments that I moved in Committee about the future regulatory structure for the profession once the 1960 Act is repealed. Thus the aim of my further amendments today is to clarify the role and powers of any board or committee to be set up to regulate chiropodists/podiatrists.

The society is by no means alone in believing that a profession ceases to be a profession unless it maintains statutory control of the functions set out in sub-paragraph 8(2) of Schedule 3: namely, keeping the register of members admitted to practice; determining standards of education and training for admission; advising on standards of conduct and performance; and disciplining members.

My noble friend said in Committee that "uni-professional input" would be preserved where appropriate, and that: In some areas, such as fitness to practice, it is absolutely appropriate that they (individual health professions) should be in the majority when considering cases which come before them". It would be most helpful if she can now provide any more detail on this and, in particular, whether she can say as much today as she did in Committee on "fitness to practice" about how and to what extent she foresees the potential for uni-professional input in the other key areas to which my amendment refers.

If self-regulation is to have any real meaning, then surely at least the functions set out in my amendment ought to be carried out by a statutory committee with a chairman and a majority of members who are state-registered chiropodists/podiatrists. I have said that the Society of Chiropodists and Podiatrists is by no means alone in holding this view. Let me, therefore, quote from a letter I received yesterday from the Chartered Society of Physiotherapy (CSP). It says: As you stated at Committee Stage, one possible option for reform includes the abolition of the individual professional boards in favour of committees on which each profession would have only one or two representatives. If this were to happen, essential functions of self-regulation will have been taken from the profession—against its will. To protect professional self-regulation the Society believes it is essential that physiotherapists constitute a uni-professional majority in all boards/committees that decide on all essential regulatory functions, which obviously include: fitness to practice, educational standards, validation of courses and entry to the profession". The letter then recalls that the Minister clearly stated in Committee that there should be uni-professional majorities when considering issues of fitness to practice, and it proceeds: However, it is not clear whether other elements of professional self-regulation, educational standards, validation of courses, entry to the profession etc, will be protected. It is of the utmost importance that the Government clarify their intentions". The CSP's letter concludes, The Government need to go further to reassure this profession that its professional self-regulation is not under threat. In this regard we believe your amendments are proving to be very useful. We would particularly welcome anything you can do at Report Stage to secure more reassurances from the Minister on uni-professional majorities". State-registered chiropodists/podiatrists diagnose and treat patients independently of medical practitioners. They carry out highly invasive bone surgery and have access to anaesthetics and other prescription-only medicines. That is why a strong regulatory regime, based around self-regulation, is essential for the profession.

In Committee I pointed to some recent research at Manchester University showing that, among patients with diabetes, leg amputations increased by 50 per cent. in the absence of timely intervention and appropriate treatment by a qualified chiropodist/podiatrist. And I make no apology for recalling today a statement made to me during this Bill's Committee stage by Mrs. Sue Sharpe, the Director of Professional Standards of the Royal Pharmaceutical Society of Great Britain, on the danger to patients of using non-state-registered chiropodists, and her advice to members of her society to promote the services only of state-registered chiropodists. She wrote: 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". Nothing could more strongly emphasise how important it is in the public interest for fully qualified and insured chiropodists/podiatrists to play their rightful part in effectively regulating their profession.

Since moving my amendment in Committee, I have also heard most helpfully from Professor Andrew J. M. Boulton, MD, FRCP, Professor of Medicine at Manchester University and consultant physician at the Manchester Royal Infirmary, who writes: Foot problems remain the commonest cause of hospital admission amongst diabetic patients in this country. They account for 1 in 5 of admissions. Ensuring a quality foot care service for patients with diabetes is, therefore, essential for both medical and economic reasons". He goes on to say that chiropodists/podiatrists form a pivotal part of the footcare team and that indeed many teams are led by members of the profession. He adds: It is essential also that a fully informed regulatory body is responsible for entry into the profession and also for overseeing standards of training to avoid anomalous situations that exist today, when individuals can self-proclaim themselves as chiropodists after the shortest of courses. Whereas most State-Registered practitioners provide an invaluable service to diabetic foot care, there are some individuals who lack sufficient experience in such care and can cause irreparable damage to diabetic feet, resulting in devastating end points such as gangrene and even amputation". Professor Boulton also has the distinction of being Chairman of Post-Graduate Education for the European Association for the Study of Diabetes and chairs its Diabetic Foot Study Group. I am sure noble Lords in all parts of the House will be grateful to him for this eloquent and authoritative testimony to the importance of effective self-regulation for the profession of chiropody/podiatry.

I know my noble friend appreciates that state-registered chiropodists/podiatrists are not seeking aggrandizement for their profession and that any suggestion that they are being unhelpful in pressing their concerns is totally unwarranted. Their abiding concern is to protect professional standards in the public interest and Professor Boulton's letter to me shows how vitally important that is to people whose disabilities make them at once highly vulnerable and vitally dependent on fully qualified help.

I look forward to hearing from my noble friend that her objectives on self-regulation are identical to those of the profession. Perhaps she would also now confirm that it will be the Government's intention to continue the Privy Council's role in relation to the profession of chiropody/podiatry as well as to the medical profession. Meanwhile, I conclude by thanking her again for what she has already done in relation to protection of title and for her readiness to arrange further dialogue with the society. I beg to move.

Lord Walton of Detchant

My Lords, it has been drawn to my attention that when the noble Lord, Lord Morris of Manchester, proposed amendments on this topic at Committee stage, I made a comment which may now be regarded as being outdated.

Some years ago, when I was consulted by the Society of Chiropodists and Podiatrists, it was then the case that the chiropodists with the primary qualification undertook minor procedures on the feet, whereas those who called themselves at that time podiatrists, undertook an additional period of post-graduate training, often of some two years, with surgical training as part of that to enable them to use local anaesthetics and to carry out surgical procedures of a much more invasive nature. That was the case several years ago; but, in fact, the term "podiatry" has become internationally recognised as being virtually synonymous with chiropody as it stands in this country. So, as the noble Lord said in Committee, the terms are now interchangeable.

However, when the issue of self-regulation of this profession is further considered under that body which is instituted under the Bill in succession to the Professions Supplementary to Medicine Act, I hope that it will, like the other professions—such as, physiotherapy, and so on—receive separate consideration. When that happens, I trust that those chiropodists and podiatrists who have undergone that specific period of post-graduate training to enable them to carry out surgical procedures on the feet will be properly and separately identified in any register which may be established. I know that this is a matter of concern to the Royal College of Surgeons and to the British Orthopaedic Association.

Lord Skelmersdale

My Lords, I would add to that the public at large because there are all sorts of naturally invasive procedures conducted by professions allied to medicine which are currently not regulated or, indeed, are insufficiently regulated. That is a very wide concern.

The whole point of Clause 47 is to change the statutory regime whereby these professions are regulated by Act of Parliament into professions regulated by order. I go along with that to a great extent. However, it is important that the same sort of controls, the same sort of inspections and the same sort of registration as are currently conducted under an Act of Parliament should continue to be conducted under regulation. That is something I would very much like the Minister to confirm this evening.

Baroness Hayman

My Lords, I am grateful to my noble friend for introducing his amendments. I shall certainly do my best to be reassuring. I hope that he will understand that if I cannot give firm commitments on matters of detail it is because of the stage in the legislative process at which we currently find ourselves, rather than any lack of concern regarding the fact that these are important matters that we need to address.

As ever, my noble friend has put a powerful case for respecting the contribution to healthcare given by chiropodists and podiatrists; and, indeed, by members of other professions supplementary to medicine. As the noble Lord, Lord Skelmersdale, rightly said, they can have a crucial role to play in the health of patients and we all have an interest in ensuring that they have effective self-regulation.

I should point out to the noble Lord, Lord Skelmersdale, that the reason I shall not give him an assurance that it will be the same sort of regulation that will replace the current Professions Supplementary to Medicine Act is because I believe that that framework is too weak. We are looking to provide stronger professional self-regulation. I shall quibble with the noble Lord on the semantics and say that it is not that we wish to take any functions away from any successor body, but that the many criticisms which the chiropodists and the podiatrists have made of the current regulatory structure—indeed, other professions supplementary to medicine have grave concerns about the weaknesses that are there—are one of the main reasons for seeking an order-making power to enable progress to be made on establishing a more effective regulatory structure for these professions.

The Bill makes clear our intention to repeal and replace the Professions Supplementary to Medicine Act under which the chiropodists and podiatrists are currently regulated. A review of the Act was published in 1996, following extensive consultation with the professions concerned, education providers, employers, consumer representatives and those who wished to be accredited under the Act. The review made important recommendations for new legislation to cover the professions allied to medicine, the broad thrust of which was accepted by the Government.

Given that the review was published almost three years ago, I understand the impatience of the professions to get into the detail of the replacement legislation. But perhaps I should remind the House that the Bill before this House does not contain any specific proposals other than that the 1960 Act be repealed. This is precisely because the proposed order-making power is an enabling measure, which is subject to the checks and balances and the limitations on the scope of orders that we have already debated. I believe that all Members of your Lordships' House agree that they are necessary, given that we are changing from a situation of primary legislation to one of secondary legislation.

During the passage of the Bill we have rightly debated what use the scope of the order-making power should have and the procedures for using it. Indeed, we shall do a little more of that later on. However, this is not the time to debate the detailed proposals of a future order. There will be plenty of opportunities for such a debate in the future as set out in the Bill. We are committed to full consultation on any proposals for replacement legislation. Once a draft order has been developed the Bill provides for the publication of it; for consultation, including with the professions concerned; reporting the responses to the consultation to Parliament; and, finally, affirmative resolution procedures. It is our intention to work closely with all the professions concerned in creating an appropriate legislative framework for the professional self-regulation of the professions allied to medicine.

Although I cannot go into detail as regards what the outcome of that process would be, perhaps I may repeat that our aim is not to diminish but to strengthen the regulation of chiropodists, podiatrists and all the other professions allied to medicine. I explained in Committee that we want to take action to ensure the proper protection of title. I was grateful for the welcome that my noble friend gave to that proposal. I have also explained, and am happy to repeat, our intentions in relation to the Privy Council; namely, that we will consult on the basis of retaining accountability to the council, not just for the chiropodists and podiatrists alone. I believe that that is what my noble friend was suggesting. We will be consulting for all the professions which will be regulated under the successor legislation.

Lord Morris of Manchester

My Lords, it was not my intention to exclude any other profession. As I believe I explained, I was speaking as president of the Society of Chiropodists and Podiatrists. Thus, naturally my concern was to obtain for them the assurance that my noble friend is now giving. I know from my very close contacts with other professions allied to medicine that they will also be extremely glad that this important link with the Privy Council is to be maintained.

Baroness Hayman

My Lords, I completely understand why my noble friend used that particular example. I was only drawing attention to the breadth of my reply because the way that he phrased his introduction did relate to chiropodists and podiatrists. It is important to understand that it is accountability to the Privy Council for the successor body dealing with all the professions supplementary to medicine.

Perhaps it might be helpful at this stage to explain that one of the most fundamental recommendations of the review report was a move away from parent uni-disciplinary boards towards a federal council with a much stronger strategic role. Within this structure it envisaged that input on matters specific to individual professions would be secured through extensive advisory networks and provision for "peer review" in fitness to practise cases. The review recommended the establishment of a strong cross-professional council in order to strengthen the overall effectiveness of the regulation of the professions supplementary to medicine, as there is a great deal to gain from more collaborative working, both for the professions concerned and for patients.

As I have said, I understand and share the concern of chiropodists that the distinctive contribution of each profession within a joint regulatory framework should be properly acknowledged. Areas such as the content of education and training syllabuses and fitness to practise cases are matters where uni-professional input will be essential.

Your Lordships will, however, understand that many fitness to practise cases deal with issues not directly related to the practice of the profession itself but with the conduct of the registrant, for example, in cases of abuse of patients or criminal convictions. This is an area on which the professions could usefully share and develop common values and standards for the better protection of patients. I do not think it is in the interests of patients for there to be a variety of standards of protection according to the individual profession concerned. However, fitness to practise cases on matters of clinical competence are obviously an area where uni-professional input must be properly secured. Getting the system right will be a delicate balancing act.

But, equally, the health professions have many aims and values in common, and we see great merit in strengthening the collaboration between them so as to promote genuinely patient-focused team-working of the kind to which my noble friend referred. It is worth noting that nurses, midwives and health visitors are jointly regulated, and that the recent review of the Nurses, Midwives and Health Visitors Act recommended that this arrangement continue, although there too we have to ensure that the right uni-professional input exists on appropriate matters.

It is therefore our intention to work closely with all the professions concerned to ensure that the new arrangements strike the right balance. It is useful to remember that there are nine other professions within the CPSM and three more hoping to join, all of whose views will need to be taken into account. What we all share is a desire to see a stronger and more effective successor body to the CPSM.

I hope my noble friend will understand that I have given as much detail as I can at this stage on our proposals. But I can certainly give an undertaking to ensure that, in working closely with the professions to develop proposals for replacement legislation, I will ensure that this very important issue of securing proper individual contributions from each of the professions concerned is paid the closest of attention, as indeed must be the case with nurses, midwives and health visitors. I hope that, given my assurances about how the next stage in the process will be tackled and that we will have proper regard to the concerns my noble friend has raised today, he will feel able to withdraw his amendments.

9 p. m.

Lord Morris of Manchester

My Lords, I am grateful for the kindliness of the remarks of my good friend Lord Walton this evening. I know that the Society of Chiropodists and Podiatrists will also be most appreciative of what he said about our exchanges in Committee. He is a friend and colleague for whom I have the highest regard.

I am grateful also to my noble friend Lady Hayman for her reply which I shall discuss with the Society of Chiropodists and Podiatrists before the Bill's Third Reading. I know that it will carefully consider all that my noble friend has said and that its starting point will be the hope that agreement can be reached with the Government in pursuit of shared objectives. It is on that basis that I withdraw the amendment at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hayman moved Amendment No. 79C:

Page 38, line 16, at end insert ("so far as appears to Her to be necessary or expedient for the purpose of securing or improving the regulation of the profession or the services which the profession provides or to which it contributes").

The noble Baroness said: My Lords, it has been our aim from the beginning in matters of professional self-regulation to strike an appropriate balance in the provisions in this Bill between the flexibility required to enable the modernisation of the legislation concerning professional self-regulation and the safeguards appropriate to such a broad power. I listened carefully to the concerns that were expressed on all sides of the House at Committee stage at certain aspects of the order-making power and undertook to bring forward amendments on a number of issues. These amendments reflect that undertaking.

First, I shall discuss consultation and the recommendations of the Select Committee of your Lordships' House. We have been mindful in taking these powers of the great responsibility to use them carefully and reasonably. We have built into the process for the making of orders a number of checks and balances: the requirement for draft orders to be published at least three months before they are laid before Parliament; the requirement for consultation on the draft order during that period; and the requirement for approval of Parliament under affirmative procedures.

As I said in Committee, the Select Committee on Delegated Powers and Deregulation has given these proposals its usual thorough scrutiny. I am particularly grateful for the assistance of the committee in proposing a way of meeting the concerns expressed at Second Reading. Taking these powers imposes an obligation on the Secretary of State to act reasonably and responsibly, and this requires transparency. The suggestion that the Minister should be called to account by a requirement to report on the outcome of consultation appears to us to be a sound one and we have included provision for a report on the consultation to be made to Parliament in paragraph 9(2) of Schedule 3 by Amendment No. 97.

This would be particularly important when the unqualified agreement of the profession concerned has not been secured to the change but where the strength of the argument is for the order to be made. I envisage that the report would provide a summary of the representations made to the Secretary of State and, in particular, would include whether the proposals have the agreement of the professions concerned and the points of disagreement if there are any. It would certainly need to include the points that most influenced or contributed to any decision to go ahead without the agreement of the profession.

The Select Committee also recommended that the Bill, might also 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". We believe that an important aspect of professional self-regulation is that the statutory regulatory bodies should be accountable and act transparently. It behoves us as a Government to do the same when using these order-making powers. We have therefore gone one step further and built into the main clause, at Clause 47(1)(a), a statement of the purpose for which the order-making power may be used to make any changes to professional self-regulation. Amendment No. 79C addresses that matter.

We believe that protecting patients is at the heart of professional self-regulation. It is clearly of fundamental importance, therefore, that the order-making power may be used where this would improve the services provided to patients. The order-making power could therefore be used to strengthen protection of title; to improve fitness to practise provisions; to institute measures to deal with poorly performing practitioners; or to institute revalidation or mandatory continuing professional development. These are all issues of protection of patient safety.

Secondly, the power may be used for the better regulation of the profession concerned. This is extremely important, not least to ensure that modern, effective and flexible legislation can be made to replace some of the overly detailed, overly specific legislation of the past. For example, an amendment to the Dentist Act is required simply to enable the GDC to increase the number of lay members on its board. An amendment to the Medical Act is required to enable the GMC to bring forward a single procedure for the registration of overseas doctors.

I was grateful to the noble Baroness, Lady Wilcox, for reminding us in debate in Committee last week that the primary purpose of regulating the healthcare professions is the protection of the public. That was clear in the contributions of the professionals who spoke. She made that point very much in the context of taking into account the consumer interest—that of patients, families and carers—in developing healthcare policies. The whole House will agree that this is of fundamental importance in the development of professional self-regulation, where patient protection is such a key issue.

It has always been our intention that consultation should be wide so that we capture the views of the professions, the National Health Service and the public in all parts of the United Kingdom. We do not wish to create a list on the face of the Bill. But we want to make it quite clear that the Secretary of State should be required to consult not only the profession affected by the proposed order but also representatives of the users of professional healthcare services. That is the issue to which the noble Baroness's amendment addresses itself.

At Committee stage I said that I would give the issue some thought and bring forward a suitable amendment at some stage in the further progress of the Bill. I assure the noble Baroness that we remain committed to doing so. But I hope she will understand that there were quite a large number of amendments to be drafted in rather a short period of time and we have not managed to deal with everything in time for Report stage. This is a matter of timing, not of intent. On that basis, in order to allow us to draft a suitable amendment, I hope that she will be willing not to move her amendment when we reach it. Perhaps it would be helpful to mention to the House that I hope to bring forward other government amendments in time, if possible, for Third Reading so as to meet other commitments made to the House in Committee and at the Report stage, in particular on Part II with regard to remuneration and to make some other minor improvements.

Lord Skelmersdale

My Lords, the noble Baroness is speaking more and more quietly as the evening progresses. I am not surprised by that. Will she repeat her last two or three sentences because I did not catch them?

Baroness Hayman

My Lords, I apologise. I shall clear my throat and try to do better. I asked the noble Baroness, Lady Wilcox, whether she would be willing not to move her amendment on the basis of the Government bringing forward an amendment at a later stage, and I flagged up that I would hope to be able to bring forward some other government amendments, if possible in time for Third Reading, to meet commitments made in Committee and on Report, in particular on Part II regarding remuneration and to make some other minor improvements.

Lord Skelmersdale

My Lords, I am grateful to the noble Baroness.

Baroness Hayman

My Lords, some concern was expressed at the Committee stage, and by the professional regulatory bodies, that the Government might seek to use the order-making power to impose a lay majority on regulatory councils. That was never our intention. Therefore, we have brought forward Amendment No. 94 which prevents the order-making power being used to impose a lay majority on a regulatory body.

I should like to emphasise, however, that this in no way reflects any doubt about the value of the contribution of lay members on professional regulatory bodies both in developing policies and in the fitness to practise committees. Rather we welcome the moves of some councils to increase lay membership and improve accountability to the public. We believe that lay membership offers an opportunity to involve people with different expertise and experience; helps ensure that regulatory bodies do not operate in isolation from developments and changes in other parts of the professional world or society at large; and demonstrates the bodies" commitment to open and accountable self-regulation.

The order-making power can still be used to increase the number of lay members or to enable a regulatory body itself to ensure a lay majority. But many of the professions believe that a key element of professional self-regulation is that there is a majority of the profession on the statutory regulatory body. We would not wish therefore to impose a lay majority against the wishes of the profession.

As I said during the Committee stage, I understand the importance that many of the professions attach to their accountability to and relationship with the Privy Council, and that is why we have provided that for the existing regulatory bodies they should not be transferred to another person. In response to the proposed amendment of the noble Lord, Lord Walton, I promised to consider this matter further and to bring forward an appropriate amendment if it were possible. It was. Amendment No. 94 preserves the role of the Privy Council in respect of pharmacists, doctors, dentists, opticians, osteopaths and chiropractors. I hope it provides the reassurance that these professions and the noble Lord, Lord Walton, were seeking.

I also said that I believe that it is right that the lines of accountability for new and replacement organisations should be fully explored. We propose to set up bodies to replace the CPSM and the UKCC. Their current accountability arrangements differ. As with other bodies, the CPSM is accountable to the Privy Council. The UKCC, however, is accountable to the Secretary of State, and that relationship has proved a very effective one. The Review of the Nurses, Midwives and Health Visitors Act recommended that accountability to the Secretary of State should be retained under new arrangements. The review of the Professions Supplementary to Medicine Act left open the question of accountability under the new arrangements. As I have already indicated on previous amendments, in view of the strength of feeling expressed on this issue, we intend to consult on the basis of retaining Privy Council accountability for the CPSM's successor body.

On 9th February I announced the publication, with a government response, of the independent report of the review of the Nurses, Midwives and Health Visitors Act. One of the main recommendations, which we: accept, is that the dual regulatory structure of a council and four national boards be replaced with a new UK-wide body, with ultimate responsibility for regulating the professions, and that national arrangements be made in respect of some functions previously carried out by the boards. The Government response to the report was issued with a health service circular inviting views, particularly on a number of issues of detail. Following consultation on specific proposals for new legislation, we propose to bring forward new legislation to replace the current arrangements.

We have therefore brought forward an amendment which allows for the repeal of the Nurses, Midwives and Health Visitors Act once new arrangements are in place. It should be noted that the successor body to the UKCC will be subject to the same protection under the order-making power as the remaining regulatory bodies: the four fundamental functions will not be able to be transferred from the successor body, it will not be able to be abolished, and a lay majority will not be able to be imposed.

It might also be helpful to note that although the intention to repeal both the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act are included within the same subsection, this in no way prevents their repeal at different times. That means that the repeals can be made as and when the replacement legislation is ready to be brought into effect. We have already provided that the power may not be used to abolish the existing main regulatory bodies, and I have been quite clear that such action should require primary legislation. I explained in Committee that this is the reason that the Bill itself provides for repeal of the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act. These amendments ensure that the same provision applies to the regulatory bodies that succeed the CPSM and the UKCC and to any other main regulatory body established by an order; that is, it will not be possible to abolish these bodies by order.

Perhaps the most strongly argued issue in Committee was that of the protection of the four fundamental functions. We have brought forward an amendment (Amendment No. 95) which will prevent the order-making power from removing the four fundamental functions from the relevant regulatory body except, of course, the CPSM and UKCC, which we are to replace. However, the provision safeguarding these functions would then apply to the successor bodies to the CPSM and UKCC and to the regulatory body of any further professions regulated by order in future. These four fundamental functions 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 the responsibility for them should not be removed by order—such a measure could only be taken through primary legislation.

I shall now deal with Amendments Nos. 106 and 107. Section 10 of the Professions Supplementary to Medicine Act enables new professions to be brought within the umbrella of the CPSM. There are several professions which have made petitions to be included under the CPSM and those are being considered. However, the order-making power makes Section 10 of the Professions Supplementary to Medicine Act 1960 redundant, as Clause 47 can be used to bring new professions into the CPSM. Perhaps more importantly, it enables such new professions to be regulated on a UK-wide basis, whereas Section 10 cannot do so in a post-devolution world, where the regulation of these new professions is not a reserved matter. Under Clause 48(7) a draft of such an order will have to be laid before, and approved by resolution of, the Scottish Parliament, in addition to the UK Parliament. Section 10 will therefore be repealed immediately on enactment of this Bill.

Amendment No. 98 removes the definition of "professional body" because it is no longer required. With the amendment of paragraph 8, the phrase does not need to be defined.

With reference to Amendment No. 92 on the charging of fees, this amendment is consequential on the removal of the definition of "professional body". Paragraph 4 ensures that provision can be made for new professional self-regulatory bodies to be given the financial independence which the other statutory regulatory bodies enjoy through the charging of fees for registration and certification, or indeed for any other services they provide.

I should make clear that repealing this Act would not affect the reserved status of the regulation of nurses, midwives and health visitors.

I hope that what we have done in bringing forward these amendments has properly covered the concerns raised both by the professions and by Members of this House. I beg to move.

9.15 pm
Lord Skelmersdale

My Lords, following certain activities behind the scenes in this House, the noble Baroness the Minister might well regard me as a "PMM". Neither of the M's stands for "medicine" or "medical"—they stand for "parliamentary moaning Minnie". Therefore, I must begin my comments by thanking the noble Baroness for answering my moans. She did so, first, in a private letter to me on the subject of the late arrival of information from the department, for which I am truly grateful. I readily accept her information and explanation. Secondly, I received, as I suspect many noble Lords did, what was essentially a Keeling schedule to this enormous group of amendments, for which, incidentally, (another slight moan) I did not hear the noble Baroness apologise. The amendments could happily have been split up into more digestible groups. Another "mini moan" is that Amendment No. 85 pre-empts my Amendment No. 86. That is why I have risen to speak on this group of amendments. No one bothered to tell me—no one from the department, the Whip's Office, the Public Bill Office, the Minister's private office or anywhere else, or indeed my noble friend on the Front Bench. Your Lordships are all guilty.

There is a very serious point in Amendment No. 85 and my Amendment No. 86. Amendment No. 88, of course, is consequential and the noble Baroness will have been briefed on that subject.

The Explanatory Notes on the Bill point out that Clause 47 provides, for Her Majesty by Order in Council to modify the regulation of pharmacists, doctors, dentists, opticians, osteopaths, chiropractors and nurses, midwives and health visitors", all of which are currently registered and controlled under Act of Parliament.

Paragraph 256 of the Explanatory Notes goes on to state: However, the scope of the order-making power is not limited to those Acts". My hackles immediately rose. We are talking about two sorts of professions. In all the documents I have ever seen, the noble Baroness and the department have talked only about what might be described as professions supplementary to medicine. The noble Baroness has not talked about alternative therapies. And I am very worried about the control of alternative therapies.

There was a very good reason for the control of chiropractors and osteopaths by Act of Parliament. First, it was the only way at that stage of regulating them, and I readily accept that. The other reason is that noble Lords and Members of another place had views on how the registration should be conducted. If my memory serves me right, there was alteration to the Government's original plans by Members of both Houses of Parliament during the passage of those Acts.

As I read the Bill, under the current proposals in the noble Baroness's enormous group of amendments it will be possible to regulate other alternative therapies by order. The noble Baroness is nodding so I assume that I have got that right.

In Committee, I questioned whether that was desirable. I chose the illustration then of the acupuncturist, who must be in the list to which the noble Baroness referred a few moments ago. When I mentioned acupuncturists in Committee, the noble Baroness gave a speedy reply, totally ignoring that point. She said: 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". Art therapy is non-invasive and, with the best will in the world, cannot be described as an alternative therapy. The noble Baroness went on to say: There are now three applications to the Privy Council including one from clinical scientists". —[Official Report, 4/3/99; col. 1804.] That again is something which is readily understood and accepted by the medical profession. But there are other therapies of various kinds—for example, reflexology and aromatherapy—all of which, if badly conducted, could cause injury resulting in hospitalisation for the patient who has voluntarily undergone the therapy and paid for it.

I do not believe it is right that such therapies should be considered as professions supplementary to medicine, which is what the Bill, even as about to be amended, gives the impression will be the situation. The noble Baroness shakes her head. I am sure that she will shortly explain at length why I am wrong and why I should sit down and shut up.

In her introduction to this group of amendments, the noble Baroness said something about Scotland which worries me even more. One of the amendments to which she spoke concerns the new Scottish Parliament "doing its own thing". That is all very well and, as I understand it, that provision is already established in law under the Scotland Act. But could the position ultimately be different either side of the Border? In other words, am I more likely to go to an alternative therapist and end up in hospital as a result of mal-treatment on one side of the border than the other? If that is the case, it must be totally wrong. I believe that I have said enough to prove my point and so I shall now, as I said, sit down and shut up.

Baroness Carnegy of Lour

My Lords, for the benefit of my noble friend, and to save time, perhaps I may put on record my gratitude to the Scottish Office Minister for clarifying the point to which my noble friend has referred. I have had several letters from him and have asked further questions. I quote from his last letter, which puts the matter very clearly: The Scottish Parliament will … have no legislative powers whatsoever in this area [of regulation] either over existing bodies or any self-regulatory bodies which might be set up after 1 July 1999". The noble Lord goes on to explain that that does not rule out the possibility that the Scots Parliament could have an interest in professional self-regulation when it touches on matters to be devolved, but that in those circumstances there would have to be close consultation between the Scots Parliament and the Westminster Parliament. I have satisfied myself and those with whom I have discussed the matter that there is no question of any regulation or alteration to regulation being devolved; it is all in Schedule 5 to the Scotland Act and will be done at Westminster.

Lord Walton of Detchant

My Lords, at Second Reading and in Committee I expressed some concern about the provisions of the Bill relating to the regulation of various professions, the regulation of which at present is enshrined in individual Acts, such as the Medical Act, the Dentists Act and many more. I am happy to say that the amendments which have now been tabled by the noble Baroness on behalf of the Government have met the concerns of those professional bodies. It seems to me and the organisations that I have consulted that by these amendments the Government have walked that important and difficult tightrope between, on the one hand, enabling order-making powers to be used to modify in some respects a few of the functions of these regulating authorities and, on the other hand, leaving their basic structures and functions intact. The evidence from each of these organisations, not least the General Medical Council and the General Dental Council, is that they are very satisfied with these amendments and commend them.

I comment briefly on the points made by the noble Lord, Lord Skelmersdale. I had the privilege of sponsoring the Osteopaths Bill and the Chiropractors Bill in this House. I did so following the reports of the King's Fund upon these particular professions. Like the King's Fund and the inquiry that it sponsored, I was satisfied that those professions had developed a formal training programme of adequate length and content such that those with the protected title of chiropractor and osteopath had been sufficiently well trained for the protection of the public.

The noble Lord, Lord Skelmersdale, is absolutely right. There are many other professions in the field of complementary medicine that would welcome the opportunity of self-regulation. But as yet relatively few of them have achieved the standing and recognition in training and other matters that is sufficient in my view at least—I speak as a member of the Council of the Foundation for Integrated Medicine established by the Prince of Wales—to seek self-regulation. I believe that that time will come. It may well be that under order-making powers it is proper for them to be included in the body that will subsequently succeed the Professions Supplementary to Medicine Act. But in the meantime I commend these amendments which I believe answer the anxieties of the existing regulatory bodies. I congratulate the Government upon the skill with which they have tabled these amendments.

9.30 p. m.

Lord Skelmersdale

My Lords, before the noble Lord, Lord Walton, sits down perhaps I may put one question. Does he believe that the alternative therapies that are in the queue, albeit, as he said, a very long way off, can be happily regulated by order as opposed to Act of Parliament?

Lord Walton of Detchant

My Lords, that is certainly my belief.

Baroness Fookes

My Lords, the Minister always presents her case so reasonably and with such charm. Clearly, she has taken a great deal of trouble over these amendments and therefore it seems positively churlish even to raise a slight query. Nevertheless, I do so. I fear that I shall join that select group of parliamentary moaning minnies to which my noble friend belongs. Is it not true that, even though these powers are now hedged about in a way that they were not before, a determined Secretary of State still has considerable powers to bring forward changes that it is hoped will be agreed with the professions concerned, but may not be? Does she agree that when we are faced with an order that must be accepted by both Houses or rejected entirely the Secretary of State is still left with a considerable amount of power? That is the purpose of my rising to speak now. Quite a number of powers remain, do they not?

Baroness Emerton

My Lords, I too thank the Minister for the way in which she introduced this set of amendments. I join my noble friend Lord Walton in saying that the nursing profession is very pleased by the way in which these amendments together answer its queries on the order-making powers.

As to Amendment No. 79C, the profession is concerned about one matter in particular and asks the Minister to clarify it. It concerns the functions set out in the schedule. Standards for professional conduct could be set out. At present there is reference to administering procedures. Amendment No. 79C gives a wide scope. Therefore the profession is anxious that the standards for professional conduct could be better provided for than by using the word "administering". I ask the Minister to clarify that point which was raised during Second Reading. I was not present, unfortunately, at Second Reading but have read the debate in Hansard. I congratulate the Minister on achieving the balance between flexibility and safeguards which is extremely difficult in such legislation.

Lord Monkswell

My Lords, I, too, wish to join the noble Lord, Lord Walton of Detchant, in thanking my noble friend and the department for producing what appears to be an extremely satisfactory regime. It may be my inadequacy, but I wish to ask my noble friend two minor questions and one of more significance.

Am I right to believe that Amendment No. 96 is a transition facility or arrangement enabling the current regime to continue while the new regulatory system is formulated and brought into play? Am I also right to think that the middle paragraph of Amendment No. 94 applies to midwives? As my noble friend said in Committee, a committee consisting of a majority of registered midwives could deal with the self-regulatory aspects of midwifery.

The more substantial question relates to Amendment No. 87 which will result in the repeal of the Nurses, Midwives and Health Visitors Act 1997. Section 16 of that Act states that: A person other than a registered midwife or a registered medical practitioner shall not attend a woman in childbirth". I am sure the whole House will agree that that is an important safeguard for expectant mothers. It is late at night and I shall not delay the House with a list of horrendous situations which have occurred in the past where a woman in childbirth has not been attended by a midwife or doctor.

I have two questions. First, under this Bill will the Government have the power to enshrine in law the Section 16 provision of that Act? Secondly, and almost inconsequentially but hoping for a positive reply, is it the Government's intention to enshrine in law such a provision if they have the ability?

Lord Clement-Jones

My Lords, I add the appreciation of these Benches for the fact that the Minister has brought forward the amendments and responded so comprehensively to the concerns of the professions and their regulatory bodies. As the noble Baroness, Lady Fookes, reminded us, there are still considerable powers under the Bill for the Secretary of State. We on these Benches believe that the amendments go a long way towards mitigating those powers. We welcome them.

However, there are still some concerns by the profession about the way in which the safeguards will work. The Minister went some way towards answering them, but perhaps I may replay one or two in order to make sure that we on these Benches have understood her reply. The noble Lord, Lord Morris of Manchester, raised the issues of importance to the chiropodists. Others in the professions allied to medicine also have concerns about not being too narrowly confined, in terms of uni-professional majority to fitness to practice, but also involved is the whole issue of education standards, the validation of courses and entry to the profession. Those professions will appreciate the Minister's assurance about securing proper individual contributions from those professions in the debate as we go forward. One cannot anticipate the result of those consultations.

A further question for the professions allied to medicine relates to the role of the Privy Council. I understood the Minister to say that she will be consulting on the basis of the retention of that Privy Council role. That will be much appreciated.

A further question surrounds the combination of the effect of Amendments Nos. 95 and 97. The wording is difficult and confusing, but I understood the Minister to say that, although in the first instance one must jump over the hurdle of those Acts, successor bodies will be protected. Therefore, it will not be possible to have their functions transferred by order, even though it will be possible for the UKCC and the CPSM.

Furthermore, there is the issue of devolution and the regulation of professions. Although the noble Baroness, Lady Carnegy, was clear in her understanding, I am not sure that my own understanding is quite so clear. It is important that the Minister confirms to the more confused of us that, despite the repeal of the 1960 and 1970 Acts, the professions currently covered by them will continue to be regulated on a UK-wide basis.

Another concern is that if the healthcare assistants are brought into a regulatory scheme, that is not reserved. Therefore, there would have to be agreement by the Scottish Parliament to any joint UK regulation of that set of staff in the health service.

The noble Baroness answered the question about the timing of the repeals. I understand that one can have a different appointed day for elements of a particular subsection. It would be helpful to have confirmation of that.

Finally, I make a cognate point to that raised by the noble Lord, Lord Monkswell, about the committee of a newly constituted UKCC or successor body. It would be helpful for the noble Baroness to reconfirm her understanding of the state of play so far. For instance, will it be an equally balanced body between nurses and midwives? If so, it may well be unnecessary for there to be a committee. If it is not balanced, a committee, that uni-professional majority which deals with issues such as entry to the profession, will be necessary. It would be helpful if the Minister, even at this late hour, were able to throw a little more light on that aspect.

Earl Howe

My Lords, I have little to add to what other noble Lords have said. The amendments represent a very satisfactory resolution of the difficulties highlighted at Second Reading and in Committee. The Minister deserves our thanks for all that she has done. I beg to differ slightly from my noble friend Lord Skelmersdale because I do not believe that any apology from the Minister is called for after all the hard work that she has done.

My only question relates to Amendment No. 79C. I have been asked by the Association of Optometrists to obtain an assurance from the Minister. As the Government say in their Explanatory Notes to the Bill, the purpose of professional regulation is to set a standard of conduct and competence for each profession which protects the public. By implication, the purpose of the order-making power in Clause 47, as amended, is not only to keep the legislative framework surrounding the professions up to date but also to strengthen that legislative framework. That was a point which the Minister made this evening.

Therefore, will the Minister respond to the concern expressed to me by the Association of Optometrists that the order-making power in Clause 47 and Schedule 3 will be used essentially to preserve and develop the statutory regulation of health professions and that, in particular, it will not be used to reduce the responsibility of the profession for a particular reserved activity such as the testing of eyesight?

9.45 p. m.

Lord Rowallan

My Lords, my noble friend Lord Skelmersdale mentioned alternative medicine, which I use very readily. I felt that he cast aspersions—twice in fact. He said that often people, having been to alternative medicine therapists, then needed "proper" help from the NHS. I believe that that needs to be looked at.

Lord Skelmersdale

My Lords, I must interrupt my noble friend on that. I said that intervention by alternative therapists could—and I stress "could"— result in hospitalisation. I gave three examples of which I had personal knowledge where that was the result. That is most certainly not to say anything damning about alternative medicine therapies. Not only have I used many of them myself, but I was also the Minister responsible for them when I was at that department at the relevant time.

Lord Rowallan

My Lords, I am delighted to accept my noble friend's assurance on that. I have certainly come across many cases where the opposite was the case. People have found great help from one of those alternative medicine therapies.

Further to that, such therapies have existed for a very long time indeed. I have spoken to therapists although only in Scotland, because that is where I live. However, they have led me to believe that they would all be more than happy to welcome self-regulation, compulsory if necessary. There would be little argument from them on that. I believe that it is an extremely good idea. I certainly welcome the amendments which the Minister has brought forward.

Baroness Hayman

My Lords, I am grateful to noble Lords for their generous acceptance of the fact that we have tried hard with these amendments. I say first to the noble Baroness, Lady Fookes, that I accept her point absolutely. There are still considerable powers given to the Secretary of State under secondary legislation. The Delegated Powers and Deregulation Committee and those who have participated in the debates have recognised that if the order-making power were to be effective to do that which the profession wants it to da— for example, to provide a successor body for the CPSM and the Nurses, Midwives and Health Visitors Act and to allow sensible and flexible changes in the regulation of the professions—it had to be a substantive power.

The argument has always been to make sure that that power was not untrammelled and that the appropriate safeguards were built in. Our concern has been to ensure that we strike what I think the noble Baroness referred to as the balance between flexibility and the safeguards. The reaction of the professions indicates that we have managed to do that in the numerous changes which have laid me open to the strictures of the noble Lord, Lord Skelmersdale, of having too many amendments at one time. I understand that that makes it difficult for noble Lords.

Perhaps I may deal with one or two specific points raised in the course of the debate. I should say to the noble Baroness, Lady Emerton, as I tried to make clear in Committee, that I share her concern about the word "administering" not seeming to be particularly clear. It is simply a matter of drafting and covers the issues upon which she had concerns.

In dealing with nurses, midwives and health visitors, perhaps I can answer the questions about the transitional nature—if I can put it that way—of some of the amendments relating to UKCC and CPSM, particularly concerning Amendments Nos. 96 and 97.

In drafting the government amendments on this issue, we have had to balance the need to protect the fundamental functions in respect of the professions supplementary to medicine and the nurses, midwives and health visitors with a need to replace the current bodies. It has not proved possible to draft provisions which would both secure these functions to the CPSM and UKCC and allow us to transfer them to successor bodies, but although in theory we could, therefore, transfer the four core functions to another body—I make it absolutely clear that the Government have no intention so to do—I would like to give the clearest of undertakings on this point. We framed the amendment in order to allow for the transition from the current to the successor bodies which will, of course, have those core functions protected. We shall not remove the four core functions from the CPSM or the UKCC, except to transfer them to the successor bodies when the orders creating those successors come into effect.

On the issues relating to midwifery, perhaps I could reassure my noble friend on the absolutely basic point that it is, and will remain, an offence for anyone who is not a midwife or a doctor to attend a woman in childbirth other than in an emergency. I would also like to reassure him that we value the independent practice of midwives and have no intention of diluting it. In consulting on our proposals for replacing the current Act, we have made it clear that the new council will have a duty to make rules on the midwifery practice and will have a continuing responsibility for the statutory supervision of midwives.

Midwives will have a decisive voice in these arrangements because we intend to provide that matters solely affecting their profession cannot be determined on the votes of other professions or lay members. I hope that the noble Lord, Lord Clement-Jones, will find that reassuring, bearing in mind the questions that he asked.

As regards the question from the noble Earl, Lord Howe, on optometrists, we intend to use the power to strengthen professional self-regulation. It is not our aim to preserve the roles of the existing professions which, quite rightly, develop over time. Our aim must be to ensure that any professional is properly trained to carry out procedures and that they maintain their competence. That is very much the purpose behind these provisions.

Perhaps I can also reiterate to the noble Lord, Lord Clement-Jones, that I believe that I made clear the position with the Privy Council and the CPSM and the reserve nature of the professions supplementary to medicine and nurses, midwives and health visitors.

That brings us to the Scottish issues to which reference has been made. All professions regulated under statute as at 1st July 1999 are considered to be reserved to the UK Parliament. Professions seeking statutory regulation after that date will need the approval of the Scottish Parliament to come into a UK-wide scheme, but it is not possible to change the UK-wide powers and the reserved nature of the powers for the existing professions.

Lord Skelmersdale

My Lords, I am grateful to the Minister. Perhaps I may take the purely hypothetical example of the reflexologists. If a UK-wide scheme is proposed from Whitehall, that is fine. The Scots can either accept it or reject it. If, however, the idea comes from Scotland, are the Scots then allowed to do their own thing? Equally, if it comes from Whitehall, are they allowed to say no?

Baroness Hayman

My Lords, perhaps I may deal with the regulation of new professions, which was the main issue to which the noble Lord, Lord Skelmersdale, referred. I was not quite sure whether the noble Lord was concerned that a new profession could be regulated by order only as part of the successor body to Professions Supplementary to Medicine or whether he was concerned with what is in fact the case, which is that a separate, free-standing regulatory scheme can be provided for by order which will include the four main functions.

Perhaps I may clarify the position. Both situations are possible under the order-making power. There is a precedent for one in that it has been possible by secondary legislation to add professions to the Professions Supplementary to Medicine. It will be an innovation to be able to regulate a new profession by an order-making power.

We believe—the noble Lord, Lord Walton, confirmed that it was also his belief—that, given the very detailed nature of the consultation that would take place, the laying of the draft orders and the consultation upon them, that is an appropriate way to deal with those groups. The noble Lord, Lord Skelmersdale, referred to alternative therapists. Psychologists spring to mind as a group that might seek professional regulation. We believe that there are sufficient safeguards to make this an appropriate way forward, but the noble Lord may not share that view.

Lord Skelmersdale

My Lords, what springs to the mind of the noble Baroness is somewhat different from what springs to my mind. As the noble Baroness has mentioned psychologists, which profession is very close—

Earl Howe

My Lords, we are on Report.

Lord Skelmersdale

My Lords, I know, but the noble Baroness gave way.

As the noble Baroness mentioned psychologists, who are very close to the established medical profession, that is fair enough, but others are very worried about, for example, psychotherapists, who are very akin to them, although the psychologists regard them as very much a lower form of animal.

Baroness Hayman

My Lords, whatever the profession—or the putative profession—concerned, there will be the opportunity to debate whether it is appropriate for it to be given professional self-regulation and the status of a profession that regulates itself. We shall have those debates with each group with which it seems appropriate to deal. I do not think that we can anticipate that. We have to decide whether it is appropriate, with the order-making power, to include new professions either within the new umbrella organisation that will replace the UKCC or in a separate free-standing regulatory scheme. The latter is the proposal which is envisaged in the Bill and I think that it is the appropriate one.

I turn now to the related devolution issues. If an order is made for a profession not reserved to the UK Parliament under the Scotland Act 1998—that is, those that are already regulated—and the proposal comes from Whitehall, to use the noble Lord's formulation, the Secretary of State must also lay the order before the Scottish Parliament. It must be approved by resolution of the Scottish Parliament before he can recommend to Her Majesty that the order be made for the whole of the United Kingdom. If within Scotland anew profession wants to be regulated on its own or refuses to be regulated with England and Wales, equally that will be a matter for the Scottish Parliament. So, there is an alternative approach for the new professions.

It is unlikely that Scotland would want to go ahead alone, for example, with the reflexologists. We would hope that both administrations would consider the issue in tandem and agree the best way forward. Our overall aim must be the protection of patients, wherever they live and wherever they are treated. That is the rationale for professional regulation being a reserved matter. We are dealing with the fact that we may have a changing situation. But I hope that that changing situation will be dealt with on a common basis and a common approach.

I hope that I have covered most of the points that were raised in the debate. I commend the amendment to the House.

On Question, amendment agreed to.

10 p. m.

Baroness Hayman moved Amendments Nos. 80 to 85:

Page 38, line 17, leave out from ("any") to end of line and insert ("other profession which appears to Her to be concerned (wholly or partly) with the physical or mental health of individuals and to require regulation in pursuance of this section. '").

Page 38, line 18, leave out ("those") and insert— ("(a) the professions").

Page 38, line 20, after ("1993") insert ("and").

Page 38, line 21, leave out first ("and") and insert— ("(b) the professions regulated by").

Page 38, line 21, at end insert— ( (c) the professions regulated by the Professions Supplementary to Medicine Act 1960, (d) any other profession regulated by an Order in Council under this section. ").

Page 38, line 22, leave out subsection (3).

The noble Baroness said: My Lords, with the leave of the House I shall move Amendments Nos. 80 to 85 en bloc. I beg to move.

On Question, amendments agreed to.

[Amendment No. 86 not moved.]

Baroness Hayman moved Amendment No. 87:

Page 38, line 29, leave out ("is") and insert ("and the Nurses, Midwives and Health Visitors Act 1997 are").

On Question, amendment agreed to.

Schedule 3 [Regulation of health care and associated professions]:

[Amendments Nos. 88 and 89 not moved.]

The Earl of Northesk moved Amendment No. 90:

Page 51, leave out lines 21 to 23.

The noble Earl said: My Lords, on this amendment I shall lead in place of my noble friend Lord Skelmersdale. I should emphasise that I do not approach this issue from any expertise in health matters. I should perhaps also say that I regret that this amendment "slipped through my net" at Committee; I suspect that it would have been more appropriate to debate it at that time. While in no way excusing my lapse, I offer by way of token defence the fact that it may also have escaped the attention of other noble Lords.

As the Select Committee on Delegated Powers and Deregulation observes, the effect of paragraph 2 of Schedule 3 is to make the order-making power contained in Clause 47 a Henry VIII power. My limited experience of your Lordships' House advises me that, with every justification, we are always nervous of such powers being granted to Ministers. As my noble friend Lord Mackay of Ardbrecknish commented in debate only yesterday, it was this House that set up the Delegated Powers Scrutiny Committee to examine primary legislation and to be particularly vigilant on Henry VIII clauses.

Of course, the real difficulty here is the generally agreed perception that neither House is in a position to scrutinise secondary legislation properly. The order-making power on the face of the Bill of, amending or repealing any enactment…or prerogative instrument and any other instrument or document", creates the position where secondary legislation can be used to amend primary legislation. At any time that is a dangerous precedent. Indeed, as the Minister herself said earlier, it is important to ensure that these wide-ranging powers on the face of the Bill are not untrammelled.

As a matter of principle, Henry VIII clauses sit very uneasily with me, the more so because I simply cannot see the justification for such in this instance. That may well be my own failing. However, I hope that the Minister can elucidate the matter for me. The Explanatory Memorandum offers no assistance. I beg to move.

Lord Skelmersdale

My Lords, my noble friend has virtually said it all. However, I shall read from page 6 of the 7th Report from the Select Committee on Delegated Powers and Deregulation which says, at paragraph 30: The Committee wishes to draw the attention of the House to its recommendations concerning the lack of Parliamentary control over the creation of Primary Care Trusts"— in which we are not presently interested— the provisions in the Bill for pharmaceutical price regulation"— with which we dealt with a little earlier—"and", most importantly, the provision enabling the Queen to regulate health care and associated professions by Order in Council (Clause 47 and Schedule 3)". In this case, Schedule 3 gives the nuts and bolts, as schedules are wont to do, for Clause 47. I feel it necessary to repeat my question. I have had an answer from the noble Lord, Lord Walton, but I have not really heard an answer from the Minister. Are such wide ranging powers appropriate for secondary legislation?

Baroness Hayman

My Lords, the noble Earl and the noble Lord have raised a fundamental issue. It is a fundamental issue that I tried to address on Second Reading, in Committee and on Report. The reason for taking these powers and suggesting that they are appropriate is very much the need to be able to protect patients by being able to provide strong and effective professional self regulation. We need to be able to do that not only in theory but also in practice. The delay that has taken place in terms of waiting for primary legislative slots to do something as simple, for example, as increasing the number of lay members of the General Dental Council as well as something as substantial as replacing the Professions Supplementary to Medicine Act 1960 has been the motivation for the professions being willing and, I believe, from their reaction this evening, welcoming of a properly constrained order-making power in this respect.

The amendment before us would prevent the order-making power being used to amend any current legislation. I appreciate the concerns that have been raised in general, in principle and, indeed, specifically. However, when one looks carefully at the report of the Select Committee on Delegated Powers and Deregulation, it will be seen that it recognised the need for such a power in this case if appropriately safeguarded.

We had a very helpful debate in Committee on our intentions as regards the power and on the safeguards and limitations that were needed to reassure Parliament and the professions of those good intentions. We have taken note of what has been said at the various stages of the Bill, the concerns raised by the professions and the recommendations of the Select Committee on Delegated Powers and Deregulation. I hope that noble Lords will agree that we now have provisions that strike the appropriate balance between flexibility and safeguards and which allow us to make progress in what is a very important area.

We are not taking these powers for the sake of it; indeed, we are taking them because we need to work with the professions to strengthen professional self-regulation in a way that will protect patients. I hope that the government amendments brought forward today—and, in the case of consultation, to be brought forward at a future stage—will reassure the House and the professions that we have taken care to ensure that the safeguards and limitations on the use of this power are sufficient to meet the concerns that have been expressed. Indeed, I trust that the noble Earl and the noble Lord will not feel it necessary to press the amendment.

The Earl of Northesk

My Lords, I am extremely grateful to the Minister for that explanation. However, I still remain extremely concerned because we are, to a certain extent, being asked to legislate in the dark. One of the fundamental features which brought this matter to my attention was the considerable reference in Committee by the noble Baroness to the fact that everything that the Government intend to do is not on the face of the Bill. Therefore, the fundamental issue of being required to legislate in the dark remains; indeed, it remains to worry me deeply. None the less, I shall read the Minister's response with extreme care. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Baroness Hayman moved Amendments Nos. 91 to 96:

Page 51, leave out lines 25 to 27.

Page 51, line 37, leave out from second ("the") to end of line 38 and insert ("charging of fees").

Page 52. line 3, leave out ("47(1)(a)") and insert ("47(2)(a)").

Page 52, line 3. at end insert (", any regulatory body established by an Order as the successor to the Council for Professions Supplementary to Medicine or the United Kingdom Central Council for Nursing, Midwifery and Health Visiting or any other regulatory body established by an Order. ( ) An Order may not impose any requirement which would have the effect that a majority of the members of the regulatory body of any profession would be persons not included in the register of members admitted to practice. ( ) An Order may not provide for any function conferred on the Privy Council, in relation to any profession to which section 47(2)(a) applies, to be exercised by a different person. ").

Page 52, line 4, leave out from ("provides") to ("to") in line 7 and insert ("in relation to any profession, for any function mentioned in sub-paragraph (2) to be exercised by the regulatory body or any of its committees or officers, an Order may not provide for any person other than that regulatory body or any of its committees or officers").

Page 52, leave out line 14 and insert— ("( ) In sub-paragraph (1), "enactment" does not include any enactment contained in or made under the Professions Supplementary to Medicine Act 1960 or the Nurses, Midwives and Health Visitors Act 1997").

On Question, amendments agreed to.

Baroness Wilcox moved Amendment No. 96A:

Page 52, line 20. at end insert— ("( ) consult representatives of patients and carers; and ( ) consult any other persons he considers appropriate. ").

The noble Baroness said: My Lords, I shall withdraw this amendment. I tabled Amendment No. 96A because in response to my amendment at Committee stage the Minister indicated her intention to put a broader requirement to consult on the face of the Bill. It was disappointing indeed to note that no amendment had been tabled by the Minister at this point despite the fact that she had tabled a number of other amendments. I wondered whether I would get this amendment past her this evening because all I have done is to redraft it in a way that I hoped would be attractive to her. However, I was delighted to hear her say that this was a matter of timing, not of intent, and that was the reason she had not tabled an amendment. That is an honest revelation for which I am grateful. I fully understand the pressures of time which impinge on her. The enormous sweep of this Bill—some would say that it is too enormous—makes it a complex Bill with many audiences to satisfy from management and organisation right through to the crucial relationship between professionals and the people they serve. I look forward to seeing an amendment at the next stage of the Bill. With the Minister's encouragement, I beg to move.

Baroness Hayman

My Lords, I am grateful for the comments of the noble Baroness and for her stated intention to withdraw the amendment. I reiterate my desire to fulfil her aspirations.

Baroness Wilcox

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hayman moved Amendments Nos. 97 and 98:

Page 52, line 23, after ("appropriate, ") insert ("together with a report about the consultation, ").

Page 52, leave out lines 30 to 32.

On Question, amendments agreed to.

[Amendment No. 99 not moved.]

Clause 48 [Regulations and orders]:

Baroness Hayman moved Amendment No. 100:

Page 39, line 7, at end insert— ("( ) No order is to be made under section 30(6) unless a draft has been laid before, and approved by resolution of, each House of Parliament. ").

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 101: After Clause 49, insert the following new clause—


(". In this Act— the 1977 Act" means the National Health Service Act 1977, the 1990 Act" means the National Health Service and Community Care Act 1990, the Commission" means the Commission for Health Improvement, enactment" includes an enactment whenever passed or made. ").

On Question, amendment agreed to.

Schedule 4 [Amendments of enactments]:

[Amendment No. 102 not moved.]

Baroness Hayman moved Amendments Nos. 102A, 102B and 102C:

Page 55, line 2, at end insert— (". In section 29A(3)(b) of the 1977 Act (medical lists), for the words from first "disqualified" to "46" there is substituted "disqualified for inclusion in the list by, or by virtue of a direction of, the NHS Tribunal". In section 48 (disqualification provisions in Scotland or Northern Ireland)—

  1. (a) in paragraph (a), for the words from "services" to "above" there is substituted "any of the services mentioned in any of the paragraphs of section 46(5) above",
  2. (b) in paragraph (b), at the beginning, there is inserted "in relation to the services in question" and for the words from "a list" to the end there is substituted "any list and (if also the subject of a declaration under those provisions corresponding to a declaration of unfitness) be treated as if a declaration of unfitness had been made in respect of him.
(2) Where under the conditional disqualification provisions in Scotland or Northern Ireland—
  1. (a) any conditions are imposed in relation to the provision by any person of any services mentioned in section 46(5) above, or
  2. (b) any conditions so imposed are varied, the Secretary of State may, by a notice in writing given to each Health Authority and to the person in question, impose those conditions in relation to the provision by that person of those services under this Pan of this Act.
(3) A notice under subsection (2) above may make such modifications of the conditions as the Secretary of State considers necessary for them to have the like effect in relation to England and Wales as they have in relation to Scotland or (as the case may be) Northern Ireland, but only if the Secretary of State has previously given the person concerned written notice of the proposed modifications and an opportunity (in accordance with such requirements, if any, as may be prescribed) to make representations about them. (4) Conditions imposed by a notice under subsection (2) above shall cease to have effect if the Secretary of State withdraws the notice by giving written notice to the person concerned. (5) In this section, "the conditional disqualification provisions in Scotland or Northern Ireland" means any provisions in force in Scotland or Northern Ireland corresponding to sections 46C and (so far as relating to conditional disqualifications) 47 above. . In section 49 (regulations as to sections 46 to 48)—
  1. (a) in paragraph (c), after "disqualifications"' there is inserted "or conditions",
  2. (b) at the end of that section there is inserted—
(2) Regulations under subsection (l)(a) above may in particular provide that, where (apart from the regulations) it would be the duty of the Tribunal to inquire into both an efficiency case and a fraud case in respect of the same person, they may inquire into one case before inquiring into the other and, after proceedings in the first case are finally disposed of, may if they think it appropriate adjourn the other case indefinitely. In section 49A (application for interim suspension)—
  1. (a) after subsection (1) there is inserted—
(1A) A Health Authority may, if they have requested a review of a conditional disqualification on the ground mentioned in section 47(3)(b) or (c) above, at any time before the review is concluded apply to the Tribunal for a direction to be made under subsection (2) below in relation to the person to whom the review relates",. (b) in subsection (2), for the words from "it" to "patients" there is substituted "either of the conditions for doing so is satisfied" and after "in question" there is inserted "or the case to which the review in question, ", (c) after that subsection there is inserted— (2A) The conditions for giving such a direction are—
  1. (a) that it is necessary to do so in order to protect persons who are, or may be, provided with services under this Part of this Act to which the case in question, or the case to which the review in question, relates,
  2. (b) in, or in the case of a review relating to, a fraud case, that unless they do so there is a significant risk that—
    1. (i) an act or omission within section 46(4C)(a) above will occur, or
    2. (ii) the investigation of the case or the review will be prejudiced",.
(d) in subsection (3)", for the words from "under" to "engaged in" there is substituted "of unfitness in relation to". (e) in subsection (4), after "case" there is inserted "or review", (f) subsection (5) is omitted, (g) in subsection (6)(a), "prepared under this Part of this Act" is omitted. . In section 49B (continuation of suspension pending appeal)—
  1. (a) for subsection (1) and the preceding sidenote there is substituted—

Suspension pending appeal

"49B. — (1) Where, on disposing of a case under section 46B above, the Tribunal disqualify the person concerned under subsection (2)(b) of that section, they may, if they consider that either of the conditions mentioned in section 49A(2A) above is satisfied, direct that section 49A(3) above shall apply or, if a direction has been given under section 49A(2) above, shall continue to apply to him as respects services of the kind to which the disqualification relates. ",. (b) in subsection (2), in paragraph (a), for "direction under section 46(2)(b) above" there is substituted "disqualification under section 46B(2)(b) above" and, in paragraph (b), for "that direction" there is substituted "the disqualification", (c) in subsection (3), for the words from "direction" to "section 46(2)(c) above" there is substituted "disqualification which is not coupled with a declaration of unfitness", (d) subsection (4) is omitted.

. In section 49D (suspension provisions in Scotland or Northern Ireland), for "46(1)" there is substituted "46(5)". ").

Page 56, line 25, at end insert— (". In section 122(2) (recovery of charges), "as a simple contract debt" is omitted. ").

Page 57, line 31, at end insert— (". In Schedule 9 (NHS Tribunal), in paragraph 5A—

  1. (a) in sub-paragraph (2)(a), for "section 46" there is substituted "sections 46 to 46C",
  2. (b) in sub-paragraph (2)(b), after "disqualification" there is inserted "conditional disqualification or declaration of unfitness",
  3. (c) in sub-paragraph (2)(d), for the words from "the application" to the end there is substituted "section 49A(3) may be made to apply or continue to apply". ").

On Question, amendments agreed to.

Lord Macdonald of Tradeston moved Amendment No. 102D:

Page 58, leave out line 16 and insert— ("(a) in subsection (2)—

  1. (i) after paragraph (a) there is inserted—
  2. (ii) after paragraph (k) there is inserted—
  3. (iii) paragraphs (d) and (j) are omitted, and").

The noble Lord said: My Lords, the amendments in my name to Schedules 4 and 5 make minor and consequential changes to ensure that all Scottish National Health Service bodies are able to make service agreements with each other and with relevant bodies, such as the new English primary care trusts, outwith Scotland. They also tidy up paragraph 41 of Schedule 4. I beg to move.

Lord Skelmersdale

My Lords, does that mean that the internal market continues?

Lord Macdonald of Tradeston

No, my Lords.

On Question, amendment agreed to.

Lord Macdonald of Tradeston moved Amendment No. 102E:

Page 59, line 6, after (""or") insert ("Health").

On Question, amendment agreed to.

[Amendment No. 103 not moved.]

Schedule 5 [Repeals]:

Lord Macdonald of Tradeston moved Amendment No. 103A:

Page 64, line 48, column 3, after (""or") insert ("Health")

On Question, amendment agreed to.

Clause 51 [Devolution]:

Baroness Hayman moved Amendments Nos. 104 and 105:

Page 39, line 37, leave out ("(3)") and insert ("(4)")

Page 39, leave out line 39.

On Question, amendments agreed to.

Clause 52 [Commencement]:

Baroness Hayman moved Amendments Nos. 106 and 107:

Page 40, line 16, after ("Act") insert ("(including the Schedules)").

Page 40, line 19, at end insert— ("( ) Subsection (1) does not apply to the repeal of section 10 of the Professions Supplementary to Medicine Act 1960 (power to extend or restrict application of Act), which accordingly comes into force on the day on which this Act is passed. ").

The noble Baroness said: My Lords, I beg to move.

Lord Skelmersdale

My Lords, I cannot let the day go without congratulating the noble Baroness on her enormous stamina. When I criticised her a little while ago for her voice fading I said at that time, if I recall correctly, that I was not in the least surprised. I would be well under floor level, not to say Guy Fawkes level, by this time of night were I in her position. My only reason for speaking in that vein was to have the acoustics improved by the magic intervention of those who manage the acoustics system in your Lordships' House. I must say that I achieved my objective and it was absolutely no slight on the noble Baroness.

On Question, amendments agreed to.

House adjourned at a quarter past ten o'clock.