Select Committee on Health First Special Report

The Regulation of Private and other Independent Healthcare

SESSION 1998-99
Health Committee Recommendations: Progress - Regulation of Private and other Independent Healthcare

Fifth Report: The Regulation of Private and Other Independent Healthcare (HC 218)Published:12/07/99

Government Reply: Cm 4540Published: 12/99


Government Response and Action

1. We welcome the fact that the Government now acknowledges the need to review the regulation of the independent sector since we regard current regulation to be inadequate for the task of protecting the public (paragraph 30).

The Care Standards Act 2000, which comes into force in April 2002, has established inter alia the new regulatory framework for this sector.

2. We recommend that those providing cosmetic surgery should be obliged as a minimum to print a conspicuous health warning on all their advertisements to the effect that all surgery carries an element of risk (paragraph 52).

Does not accept

3. In the face of the apparent impotence of the ASA we recommend that the SofS for Health consults the SofS for Trade and Industry with a view to ensuring that there is adequate legislation to deal with misleading advertisements for cosmetic surgery and with other unfounded or misleading claims made for other medical or surgical treatment (paragraph 55).4. We recommend that the Government requires providers of cosmetic surgery and similar related disciplines to provide information as to the efficacy and effectiveness of treatments offered following guidelines set out by the DoH. The regulator of the independent sector should assess the accuracy of this information in determining whether or not to grant a licence. We recommend that it be mandatory that providers of such services should distribute such information. We suggest that these information packs should strongly urge consumers to contact their General Practitioner before undergoing medical and surgical treatment and should suggest questions for consumers to ask when considering treatment (paragraph 59).5. We recommend that providers should be obliged to give contact details of voluntary groups undertaking counselling or contact addresses to those seeking treatment to allow them to gain more information in this area (paragraph 61).

Does not accept assertion that powers are inadequate, though advertising controls alone may not be sufficient. Hospitals or clinics (however funded) cannot be expected to maintain high volume of information on treatments; note the establishment of NICE. Is working with plastic surgeons and patient groups to produce information for women considering breast implants. Surgeons' duty of care to patients must include discussion of risks. Availability of written information is not a substitute for one-to-one discussion between patient and surgeon.

6. We recommend that those undergoing cosmetic surgery and similar related disciplines in the independent sector should have the benefit of a 14 day cooling-off period during which they can withdraw from treatment without financial penalty. We recommend that it should be illegal for providers to charge for treatment before consumers have had a consultation with the surgeon performing the operation. We also believe that providers should be obliged to provide clear information on the cost of each procedure in advance of any financial commitment on the part of the consumer (paragraph 60).

Advise not to consent unless have had full information from surgeon and not to make financial commitment until after had consultation with surgeon.

7. We recommend that the GMC in conjunction with the Royal Colleges establishes recognized specialist training in cosmetic surgery which will then assist in the process of revalidation (paragraph 62).

Has raised issues with GMC and Specialist Training Authority of Royal Colleges.

8. We recommend that health authorities, in discharging their responsibilities for planning and ensuring the provision of comprehensive mental health services, should review ways in which the independent sector - both voluntary and private - can contribute to the planning mechanisms. We believe that the outcome should be the provision of optimum services determined by the NHS and provided in a manner which ensures a high quality of care for patients and maximum value for public money (paragraph 72).

Planning of NHS-funded care is a matter for HAs; NSF for mental health will help reduce unacceptable variations in practice across the spectrum of care providers.

9. A reliance on word of mouth notification and retrospective reminders seem to us inadequate measures to ensure the Mental Health Act Commission (MHAC) comprehensively covers the patients it should. We believe that the grant of registration of a mental nursing home to receive detained patients should be notified, as a matter of course, to the Commission. We recommend that this should be a regulatory requirement (paragraph 74).

Agrees. DoH will ask HAs to ensure that they inform MHAC straight away.

10. We recommend that an independent regulator should have the powers to remove the authority of a mental nursing home to receive patients detained under a section of the Mental Health Act if the person registered is failing to comply with the requirements of the Mental Health Act. In these circumstances, the continued accommodation of a detained patient in such a home would be unlawful and necessitate their removal to an appropriately registered premises. We believe that the presence of a power to remove the authority to receive detained patients would be sufficient, in most circumstances, to ensure compliance with the requirements of good practice so that such patients would have the right to appeal (paragraph 75).

Agrees. Independent providers that intend to admit patients detained under the Act will be registered and regulated by the NCSC.

11. We welcome the review of the Mental Health Act currently in progress and recommend that the role, powers and resources of the MHAC should be reviewed with a view to their extension to cover all designated mental health services (paragraph 76).12. We recommend that the MHAC should make its reports available to an agency serving both the Regional Commissions for Care Standards (CCS) and the regulatory body we propose for acute independent services and that it should have representation on the national level of these regulatory bodies (paragraph 77).

Green Paper makes clear that MHAC successor should complement other initiatives, including NCSC. DoH will consider carefully sharing of reports and representation on the new regulatory body.
13. We recommend that the independent health regulator ensures that inspection teams have appropriately trained and experienced personnel to assess thoroughly the needs of children being treated in the independent sector and to ensure that such needs are met by staff holding the relevant qualifications for treating children even if their treatment forms only a small proportion of a hospital's activity (paragraph 82). Agrees. Under the Care Standards Act 2000, independent healthcare establishments ill be assessed against clear, unambiguous national minimum standards and their staff will be required to have the appropriate skills and qualifications for the work they undertake, including the relevant paediatric qualifications for staff employed to look after children.

14. We recommend that the Government reviews the current arrangements for transmission of information between private and NHS GPs. We believe that the GMC should assess whether there are treatments and procedures which clinicians should be precluded from administering without access to a full patient medical history. We also believe that patients need to be warned that, if they consent to medical treatment by clinicians who do not have access to their medical records, they may run a considerable risk. This warning should be given verbally and in written form, with a form of words approved by the DoH. Patients should be made aware of the strict confidentiality procedures that apply in the NHS, and that breaches of confidentiality will normally result in dismissal (paragraph 89).

Access to medical history is generally desirable; has issued guidance to NHS on protection and use of patient information.

15. We believe that a national moderator will be required to assess whether emerging techniques and technologies pose any risk to patient safety. We recommend that, in addition to those invasive techniques currently subject to regulation, other procedures defined by the moderator should also be regulated. It is important that the list should be kept up to date; in our view the DoH's failure to maintain and update the 1984 Act in this regard is unacceptable. We recommend that the list should be capable of alteration by secondary rather than primary legislation, and that the Moderator reviews the list at least annually (paragraph 90).

Does not accept.

16. We recommend the creation of an independent regulator for healthcare outside the NHS, responsible to Government, to identify appropriate standards and relevant activity and to provide for its regulation across the country. The wider range of health care services that we recommend to be brought within this remit will require regulation to be operated on a regional basis sharing a common resources centre with each Regional Commission of Care Standards. (paragraph 95).17. We recommend that the MHAC be represented on the national board of the common resource centre for the Independent Healthcare Regulator and Regional CCS (paragraph 98).

Agrees - is establishing the NCSC which will be responsible for this sector in health and social care. National minimum standards will be applied consistently.

18. We expect all independent acute medical facilities to be brought into inspection so that, for example, there should no longer be exemption for Royal Charter hospitals and those established by Special Act of Parliament (paragraph 96).

Agrees. The Care Standards Act 2000 provides for the regulation of these and other healthcare services not previously regulated.

19. We recommend that CHI and NICE should inform a common resources centre for an Independent Healthcare Regulator and the Regional CCS. The Regulator would be expected to draw on the findings of CHI in so far as they are applicable to the individual components under inspection. Independent providers should be obliged on request to submit clinical audit and similar data to CHI and NICE (paragraph 97).

Will keep under review the possibility that it would be desirable to require private providers to submit clinical audit data to NCSC.

20. We consider that all private health care facilities operated within the management of the NHS should be required to function within the clinical procedures and management of the Trust in which they are located. Such an arrangement should require full participation in the Trust schemes of clinical governance and controls assurance. Only consultants with a current service contract or honorary contract with that Trust should be able to admit and treat private patients. This arrangement should include a requirement that any complaint in which the private medical care provided by the consultant outside their NHS contract is an issue which should be dealt with under the full complaints procedure of the NHS including access to the Health Services Ombudsman. This provision should be applicable to any private health care delivered within the terms of the NHS Acts and thus be applicable to the private use of the occasional pay bed as well as the consulting and in-patient private patient units of NHS Trusts (paragraph 103).


Does not agree

Does not accept

21. Where a private patient unit is operated by a company on behalf of the Trust, we consider that it should fall to be regulated on the same basis as a hospital in the independent sector (paragraph 104).

Does not accept.

22. We recommend that the SofS creates a licensing regime for the independent acute sector offering a wide range of powers and sanctions which places the burden of proof of compliance on the provider, not the regulator. We would like the Independent Regulator to issue a detailed code of practice with a view to ensuring that consistent national standards of inspection apply to the independent healthcare sector (paragraph 108).

We are currently developing national minimum standards to support the NCSC. It is intended that these will be so comprehensive and self-explanatory that a code of practice will be unnecessary..

23. We recommend that the GMC maintains a central database indicating where clinicians are currently employed, and where they have practising or admitting rights. We recommend that when suspensions occur as result of activity placing patients in any risk that suspension should automatically be notified to the GMC for inclusion on its database. The GMC should then be obliged to notify all current employers of the fact of suspension. All organizations employing clinicians should be required to first check their status with the GMC and will be notified of any suspensions currently applicable. We further recommend that the central councils for each of the other medical professions and professions allied to medicine take steps to ensure that they have robust procedures in place to prevent those under suspicion of endangering patient safety from coming into contact with patients (paragraph 113).

Current arrangements re suspension need radical overhaul. Will work with others to design effective and efficient information systems re suspension.

24. We welcome the SofS's uncompromising statement that, in his view, if doctors have been suspended for "anything that could have any possible bearing on the safety or health of patients" they should not be free to work in the independent sector. This is also our view. We also welcome the proposal from Baroness Hayman that consideration should be given to extending the system of alert letters from doctors to other health professionals (paragraph 115).

Alert letters recommendation will be addressed as part of action on above. Is working on extending alert letters to non-medical staff.

26. We recommend that doctors working in specialist, general practice or other unsupervised positions in the independent sector should be required to undertake training of a standard equal to that required for equivalent NHS positions. We also recommend that the GMC addresses this in its proposals for revalidation (paragraph 121).

Working with GMC on revalidation and will ensure that these issues are fully considered.

27. We welcome the Government's commitment to review the Professions Supplementary to Medicine Act with a view to increasing patient safety. We believe that there should be a duty of care imposed on all those directly involved in the provision of health care in the independent sector to ensure that patients are properly informed not only of the qualifications and titles of those seeing them but also of any financial relationship between these individuals and the parent company. Those seeking medical or psychiatric care may be vulnerable and easily impressed by the apparent qualifications of those treating them. It seems to us totally unacceptable that they are not offered greater protection (paragraph 122).

Working to establish a new Council for Health Professions.

28. We recommend that the DoH liaises with the GMC to ensure that the Specialist Register accurately reflects both the qualifications and current experience of clinicians, by specialty and sub-specialty. We further recommend that this information should be made readily available to members of the public and their GPs. We believe that the most recent listing on the register for the surgeon performing an operation should be available to a patient in a readily comprehensible form (paragraph 124).

GMC registration committee will look at specialist registration and take recommendation into account.

29. Such is the importance which the independent hospitals themselves attach to Medical Advisory Committees in overseeing clinical standards in their hospitals, we recommend that the principles for the role of Medical Advisory Committees set out in the paper shared by the British Medical Association and the Private Practice Forum of the Academy of Medical Royal Colleges should be given statutory status (paragraph 126).

Will take into account in development of standards.

30. We recommend that the costs of regulating independent health care should be met in full by the sector. We accept that provision might need to be made to exempt certain not for profit organizations, for example some hospices, from all or part of the costs of inspection (paragraph 128).

Will consider further.

31. We recommend that the Government introduces measures to allow the NHS to recover the costs of remedial treatment in circumstances where practitioners in the independent sector have been negligent; where a sum has been awarded for remedial treatment, and that treatment subsequently takes place in the NHS, then the NHS should be entitled to recover that sum (paragraph 130).32. We recommend that independent hospitals carrying out surgical procedures which do not have their own intensive care facilities should be required to enter into a formal contract for their provision with a local NHS trust and that the independent providers should be required to compensate the NHS for intensive care provided as a direct consequence of elective treatment undertaken in the independent sector (paragraph 132).

Welcomes. Is considering extending recovery of NHS costs.

Currently developing standards, through the Care Standards Act, that will require private acute hospitals to have access to back-up intensive care facilities. Where there is no "in-house" or local independent provision of intensive care facilities, hospitals will be required to make clear arrangements with local NHS hospitals.

33. We think it essential that each provider, as part of their mandatory complaints procedure, offers all complainants an early opportunity for an independent review of their case with a view to achieving an adequate explanation of events (paragraph 140).34. We recommend that all independent health care providers should be obliged to provide clear and accessible information to their customers on the complaints procedures open to them including external complaint routes such as (at present) via health authorities, or (if our recommendations are accepted) the independent regulator. We believe that the provision of an adequate complaints procedure should be a registration requirement and that the independent inspector should have access to all documentation and records relating to complaints and that these should be taken into account in any decision as to whether to maintain registration (paragraph 141).

Agrees. The Care Standards Act 2000 will require providers to have in place internal complaints procedures as a condition of their registration.

35. We recommend that the remit of Community Health Councils should be extended to include the activity of the independent sector. We believe that any costs accruing from this should be met by the sector itself and come out of the licensing fee (paragraph 142).

Is keeping CHCs under review and will take this into account.

36. We recommend that, as a statutory condition, the provider organization should be legally responsible for the investigation of all adverse clinical incidents, including those relating to clinical practice, that take place on its premises and that full medical records should be available at all times to a clinician nominated by the provider as well as to the patient or patient representative. Each provider should be obliged to name and advertise a complaints manager to whom all complaints should be made (paragraph 143).

Agrees; note Access to Health Records Act 1990.

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