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Mr. Hammond: The Minister is right, but our point is that, under the Bill as drafted, a private establishment that provides a service to a thousand private patients and one NHS patient pursuant to the National Health Service Act 1977 will cease to be regulated by the National Care Standards Commission. That strikes me as perverse and illogical.
Ms Stuart: I would be surprised if that theoretical example occurred in practice to any great extent. During our long discussions about how the regulatory scheme should work, we tried to establish a system which has the flexibility to enable providers to use the NHS and the private sector. The proposed amendments would change the balance which we felt was the right one. Where an independent clinic or an independent medical agency provided services for NHS patients, except where those services were a substantial part of its overall services, it would not only be regulated by the National Care Standards Commission, but would, to some extent, come under the NHS arrangements, for example, within the remit of CHIMP by dint of CHIMP's role in improving quality in the NHS.
Ms Stuart: It is a matter of horses for courses. The regulations should be relative to the size of the organisations. We consider that we have struck the right balance. We could discuss that further into the small hours, but we feel strongly that we have struck the right balance.
We would not welcome the change introduced by the amendments. We envisage that independent clinics and independent medical agencies will, in the main, be small businesses. Therefore, it is important that regulatory requirements strike the right balance, and they should not be over-regulated.
Dr. Brand: I should like to pursue the point made by the hon. Member for Runnymede and Weybridge (Mr. Hammond). Earlier, I referred to the provision of alternative medicines, where, not infrequently, one can persuade an alternative practitioner to accept someone as an NHS patient, as pro bono work, in exchange for the odd referral of paying patients. Such an establishment or sole practitioner would be providing a service to NHS
Ms Stuart: If the clinic or medical practitioners are providing NHS services, they will be supervised by the NHS; if they provide medical services, they will come under the commission. I may be missing the point. However, we consider that we have struck the right balance when an organisation provides independent and NHS services.
I also have doubts about the practicality of the proposed amendments. The extent to which they would apply to independent clinics and independent medical agencies--placing them inside or outwith the regulatory ambit of the National Care Standards Commission--would hinge on an assessment of whether a substantial part of their services were for NHS patients. Who is to say what "substantial" might mean in that context? The amendments would cause confusion all round. They would place an unnecessary burden on independent clinics and independent medical agencies, something which I thought the Opposition were keen not to do. They do not improve the current balanced provision in clause 2.
Amendments Nos. 98 and 99 would require health care agencies to be regulated by the commission. I am unable to accept the amendments. The National Care Standards Commission will have a big programme of work when it takes on its regulatory functions. Not only will it be regulating those services that health and local authority inspection units regulate at the moment, but it will be regulating new services such as local authority homes, small children's homes and private doctors. To allow it to carry out that work successfully, we must ensure that it is not overburdened when it is first established. We have to consider which services might provide the most risk to the most vulnerable in our community.
When we consulted last year on the regulation of private and voluntary health care, there was no particular suggestion that the services that are included in the definition of "healthcare agency", such as occupational speech or physiotherapy services, should be regulated. The Bill already provides powers for the National Care Standards Commission to regulate independent medical agencies, nurses agencies and domiciliary care agencies. If any of those agencies carry out services included in the definition of "healthcare agency", they will in any case be regulated.
It is important that occupational therapists, speech therapists and physiotherapists, if they are to be state registered, are already required to register with the Council for the Professions Supplementary to Medicine. Although we do not believe that it is appropriate to regulate health care agencies at present, I cannot say whether the position might change in the future. To allow us extra flexibility, we introduced amendments in Committee to what is now clause 42, which gives us the power to bring other health or social care agencies within the regulatory framework.
We have a responsibility to ensure that the commission is not overburdened in its early years. However, if there is concern in the future about the safety of services provided by health care agencies to vulnerable people, we already have the power in the Bill to require them--
Mr. Burstow: I am grateful to the Minister for giving way. It sounds as though the argument for rejecting the amendments is based solely on a concern about the work load that the commission will face in its early years. Surely that is in the hands of the Government, in so far as the Government will draft the minimum standards against which the commission will do its work. If the standards are not introduced at an early stage, the definition may be in the Bill, but it will not be implemented.
Ms Stuart: I do not entirely agree with that interpretation. The consultation dealt with the aspects that should be addressed first. It is a matter not just of work load, but of priorities. If there is genuine concern, we have the power to extend regulation to health care agencies in the future. That is important.
Amendment made: No. 49, in page 2, line 40, after "illness" insert "or mental disorder".--[Mr. Sutcliffe.]
Amendments made: No. 50, in page 3, line 35, at end insert--
'( ) persons who have or have had a mental disorder;'.
No. 51, in page 3, line 42, after "is" insert "of a description".--[Mr. Sutcliffe.]
Amendment made: No. 52, in page 4, line 26, at end insert "description of".--[Mr. Sutcliffe.]
'( ) Regulations shall provide that no person is required to be registered more than once with the Commission in respect of the same establishment or agency'.
'( ) Representations under subsection (1) above may be made in writing or in person and an opportunity shall be afforded to a person served with a notice under section 17 to make representations in person in the manner prescribed by regulations'.
Amendment No. 37 addresses the issue of multiple registration requirements. Because of the architecture of the Bill, establishments might be required to register several times, involving several sets of bureaucratic procedures and possibly the payment of several sets of fees. The amendment would insert into the Bill a provision that where a person registers in respect of an establishment, he will be required to register only once in respect of that establishment, even where it may require to be registered on different parts of the register because of what goes on in that establishment.
Amendments Nos. 41 and 42, in my name and that of my hon. Friend the Member for Meriden (Mrs. Spelman), deal with an important principle. Clause 18 provides that a person threatened with deregistration may make only written representations. There is an important issue at stake, because deregistration impinges on a person's right to practise his livelihood.
Through the amendments, we are asking for the right to be heard. I am not a lawyer, but the Minister is, so perhaps she will tell me in due course whether she agrees with me. It is a fundamental principle of our legal system that an individual has the right to be heard. In professional misconduct hearings, for example, under the requirements of employment law there is always a right to appear and to plead one's case. It is also a human rights issue, as the right to a hearing before an impartial tribunal is a fundamental part of the European convention on human rights.
No doubt the Minister will tell me that the procedure outlined in the Bill includes a right of appeal to a tribunal after the written representation has failed and deregistration is ordered. That is too late. The damage has already been done by then, and the reputation of the business is ruined. There must be an opportunity for a registered individual to be heard at first instance. That is possible under the Registered Homes Act 1984--the current legislation.
The Minister has in the past relied on a recommendation supposedly made by the report of the Longcare inquiry into a case in Buckinghamshire. That report apparently provided evidence that oral representation procedures had been abused to cause delay. No one condones abuse or delay of procedures, but it is incumbent on the Government to lay regulations ensuring that procedures are not abused. Fundamental and important rights cannot simply be removed because one or two people might be tempted to abuse them.
In any case, on careful consideration of the Longcare inquiry report, it is by no means clear that recommendation 31 supports the Minister's case. It is in fact based on an opinion given by the director of social services of Buckinghamshire on what might have happened had the county council sought to move for deregistration of the establishment in question. In fact, there was no move to deregister, so the issue of delay never arose. If the Minister carefully reads the relevant part of the report, she will find that that is the case.
The evidence on which the Government seek to remove an important right is of the flimsiest nature. I could read out details of the report, but, in view of the lateness of the hour, I shall spare the House that ordeal. None the less, I hope that the Minister will look sympathetically on my argument on an important point of principle.
Government amendments Nos. 54 to 60 are a response to a request made by the Opposition in Standing Committee to make it clear that conditions on registration could be not only varied at a later date, but removed. That means that conditional registration can be cleaned up once the conditions have been complied with. I am grateful to the Minister for taking the time and trouble to put that into the Bill.