Memorandum submitted by the Royal College of Nursing, Wales
THE DRAFT NHS (WALES) BILL
ABOUT THE RCN
The RCN is the world's largest professional union of nurses, representing over 334,500 nurses, midwives, health visitors and nursing students, including over 19,000 members in Wales. Recently, the membership has been widened to include level 3 NVQ Health Care Assistants (HCAs). The majority of RCN members work in the NHS with around a quarter working in the independent sector. The RCN works locally, nationally and internationally to promote standards of care and the interests of patients and nurses, and of nursing as a profession. The RCN is a UK-wide organisation, with its own National Boards for Wales, Scotland and Northern Ireland. The RCN is a major contributor to nursing practice, standards of care, and public policy as it affects health and nursing. The RCN represents nurses and nursing, promotes excellence in practice and shapes health policies.
INTRODUCTION
The Royal College of Nursing welcomes the Welsh Affairs Select Committee's consultation on the draft National Health Service (Wales) Bill. The draft Bill is the first of its kind since the advent of devolution in 1999. Though it is not the only Wales Bill since the creation of the National Assembly (the Children's Commissioner for Wales Bill was the first), its is the first occasion that the Wales Office has formally committed itself to pre-legislative scrutiny. It is also the first time that the National Assembly and one of its subject committees has had the opportunity to suggest amendments to the Bill prior to its presentation to Parliament. We hope that this approach will constitute a new model for the handling of Welsh Legislation in Westminster—both for Wales-only Bills and for Welsh clauses in England and Wales legislation.
We also appreciate the Welsh Affairs Select Committee's decision to hold an inquiry into the Bill before the summer recess. The Welsh Affairs Select Committee is in a unique position to act as a bridge between Wales and the House of Commons. As a permanent all-party panel, it can look beyond the sometimes-partisan concerns of standing committees and analyse the ramifications of the legislation before Parliament. The RCN has also been concerned that there has been too much dislocation since the inception of the Assembly between the role of Assembly Members and the role of Members of Parliament. Many aspects of health policy such as the pay and conditions of staff, overall employment regulation, and the primary legislative framework are still the domain of Parliament. It is therefore important that Welsh MPs are involved in the debate over the future of the health services in Wales. The Welsh Affairs Select Committee is one such forum in which this debate can take place.
Our evidence will focus firstly on the parliamentary procedures to be used for the Bill and then the three main planks of the draft Bill, the establishment of Health Professions Wales, the future powers of Community Health Councils, and the foundation of the Wales Centre for Health. RCN Wales is keen to give oral evidence to the Welsh Affairs Select Committee in order to elaborate or clarify any of the points or themes raised in this written submission. As the professional body representing the largest group of health professionals in the NHS, we believe that our insights can help improve the draft Bill at this pre-legislative stage.
PARLIAMENTARY PROCEDURES FOR THE BILL
The procedure by which the Bill will pass through the House of Commons has aroused some comment in the press. The former Welsh Health Minister, Jon Owen Jones MP, has suggested that all Welsh MPs should be involved in the committee stage of the Bill, instead of the usual limited standing committee[1]. A small standing committee would have the disadvantage of having a much narrower membership—and a membership decided by Government and Opposition whips. The RCN would wish to see a broader range of MPs present for the committee stage of the Bill and using Standing Order 86 which would permit all 40 MPs in Wales to be involved in scrutinising the Bill. The RCN would not wish to see a repeat of the situation at the committee stage of the NHS Reform and Health Professions Bill when the media pointed out that two former Welsh health ministers were left off the standing committee dealing with the Bill.
Indeed, an eminent constitutional expert has suggested that it would not be impossible for the second reading and report stage of a Welsh Bill to be taken in what effectively would be the Welsh Grand Committee[2]. Such moves would allow Welsh MPs to reconnect with policy issues that are only partially devolved such as health and social services. It would enable the wealth of experience and knowledge among the 40 Welsh MPs to be brought to bear in the examination of this important legislation.
DEVOLUTION AND PARLIAMENTARY BILLS
The RCN has long been a supporter of political devolution in the United Kingdom. In particular, RCN Wales was behind fully the creation of the National Assembly for Wales in 1999. The Assembly's legislative powers relate to subordinate legislation as primary law making powers are retained by Parliament. It has been the policy of both the Assembly Government and the Wales Office when designing clauses in Bills that relate to Wales that the maximum latitude be left to the Assembly in the shaping of secondary legislation. For instance, clauses should be drawn up in a way to give the Assembly permissive or enabling powers. Prescriptive clauses that instruct the Assembly to take certain actions would only be used in rare circumstances.
Similarly, when establishing a new body accountable to the Assembly, clauses would give the Assembly the power the wind up the body. This is not because this is the intention of the Assembly at the outset, but that it leaves the Assembly with room for manoeuvre if circumstances were to change in the future. We note that all political parties in the Assembly have endorsed this approach and this is something that the RCN is in full support of.
HEALTH PROFESSIONS WALES
The abolition of the Welsh National Board for Nursing, Midwifery and Health Visiting (WNB) on 1 April 2002 prompted the creation of a division of the Welsh Assembly Government named Health Professions Wales (HPW). Health Professions Wales has since April exercised those functions of the WNB that have not been transferred to the new Nursing and Midwifery Council (NMC). Those functions include the registration of nursing students, the supervision of post-registration training, and the facilitation of Senedd—a quarterly forum for nursing midwifery and health visiting. HPW is also remitted to cover allied health professions and for the first time health care assistants (HCAs—or health care support workers as they are described in the draft Bill) will have a body to oversee their work. This is a welcome expansion of role over the WNB.
However, the designation of HPW as an Assembly Government division was always meant to be temporary, as this would make the delegation of functions from other bodies (such as the NMC or the Health Professions Council) problematical. The draft Bill will establish HPW on a statutory footing and will allow the body to operate at arms length from ministerial control. We therefore welcome the clauses in the draft Bill that make HPW a statutory body accountable to the Assembly.
The RCN would wish to place on record some observations about the clauses that may require further thought. Firstly, we are unsure of the extent to which powers of direction granted to the Assembly are wholly appropriate. The Minister for Health and Social Services will, in effect, exercise these powers without the approval of the Health and Social Services Committee or the Assembly as whole. We would seek reassurance that the powers of direction outlined in clause 4 subsections (2)(c) and (4) are not intended to be used to undermine the necessary autonomy of HPW. It is right that the Assembly as a body should be able to pass secondary legislation to set the parameters of the work of HPW, but Ministerial intervention through directions on what are essentially professional matters will often not be desirable or appropriate. We believe that further clarification is needed on these clauses.
The Department of Health (DoH) is due to issue a consultation paper on the future regulation/registration of HCAs in the next few months. One option mentioned in the explanatory notes of the draft Bill[3] is that HPW could issue a code of conduct for HCAs. The RCN believes that these issues should in the first instance be dealt with on a UK-basis, to ensure a consistent approach that will facilitate the cross border working that very often occurs in the NHS. This would not impede HPW from exercising some ancillary or delegated functions from whatever UK-wide arrangements are created as a result of the DoH consultation paper.
STRENGTHENING COMMUNITY HEALTH COUNCILS
Community Health Councils (CHCs) are one of the few avenues by which patients can take up complaints against the NHS. They are a fully independent network of 20 organisations that act as a watchdog across Wales for the interests of patients. CHCs have been criticised in the past, but mainly on account of their lack of funds and deficient powers to deal with NHS bodies. Against the recommendation of the RCN and other health organisations, CHCs in England are to be abolished. The National Assembly for Wales successfully persuaded the Department of Health to leave out clauses abolishing CHC in Wales and the Assembly embarked upon a consultation on how to improve public involvement and participation in the NHS. Pilots of various programmes are ongoing and the RCN would not wish to pre-empt the evaluation of these arrangements. However, RCN Wales warmly welcomes the maintenance of CHCs in Wales and proposals to enhance their status in the draft Bill.
The powers for CHCs to inspect the premises of NHS and other bodies is a positive step. However, we would wish to see a specific paragraph in Schedule 1 of the draft Bill which states that CHCs should have a right to be "furnished with information" by health bodies short of a formal inspection. We understand that this is a specific concern of CHCs in Wales. We would welcome a clarification of the law in this area, as it would have the effect of benefiting patients who have a complaint against NHS Wales.
With the impending closure the Association of Community Health Councils of England and Wales with the abolition of CHCs in England, there will be no single body that can represent the interests of CHCs on an all-Wales basis. If CHCs are to be a powerful voice for patients across Wales then they will need a body that will allow them to articulate patient concerns coherently on a national level. We therefore welcome paragraphs 4 and 5 of the draft Bill that permits the Assembly to set up a body "to advise Councils with respect to their performance of their functions, and to assist Councils in the performance of their functions"[4]. We agree that the shape and size of the new Association of Community Health Councils of Wales (or whatever it may be named) should be a matter for the National Assembly to decide and not a matter for prescription in primary legislation.
The question of the review of major service reconfigurations—(such as the closure of a accident and emergency unit or an acute unit in NHS Wales has not been sufficiently dealt with by the draft Bill or by the NHS Plan for Wales, Improving Health in Wales. Prior to devolution, a CHC could refer an inadequate consultation by a health authority to the Secretary of State for Wales for review. After devolution this right of review passed to the National Assembly as a corporate body. However, when health authorities are abolished in April 2003 it is possible that major service reconfigurations will emanate from the NHS Wales Department in the Welsh Assembly Government. This is because it is unclear whether individual Local Health Boards will be responsible for proposing such changes, as the ramifications of major service reconfigurations would have consequences beyond a single LHB boundary. In such cases the regional offices of the NHS Wales Department of the Assembly Government may play a key role in proposing service reconfiguration. It would be entirely inappropriate for the Assembly Government to be "judge and jury" on what would effectively be its own proposals.
The question therefore arises as to where the appellate authority should reside in such cases. In England, an Independent Reconfigurations Panel will be charged with providing advice on whether such changes have been introduced in a procedurally correct manner and whether they are in the public interest. However, actual decisions will be made by the Secretary of State for Health upon this advice.
It is the view of RCN Wales that in cases where regional offices have participated in proposing reconfigurations that an independent group should have the final say as to whether the reconfiguration should go ahead. The panel must be independent of both CHCs (as the complainants) and the Assembly Government (as the de facto proponents of reconfiguration). Its membership could draw on a pool of members representing the public, health professionals not affected by a case (who can give a clinical angle on discussions) and representatives of relevant voluntary organisations.
In cases where a reconfiguration is the proposal of one or more Local Health Boards it may still be appropriate for any appealed case to be referred to a Welsh Independent Reconfiguration Panel, after which their report could be sent the Assembly Government for decision. Either way, an independent element will be essential to the impartial evaluation of significant service reconfigurations. RCN Wales therefore believes that consideration should be given to inserting additional clauses into the Bill to establish a Welsh Independent Reconfiguration Panel to decide or advise on disputed cases.
Generic independent advocacy services for patients will be a key area for development and has been an historic weakness of the health service. Specialist independent advocacy services (for instance mental health advocacy) are already provided by a various agencies, however, generic services have been under provided. RCN Wales believes that CHCs could become the principal commissioner of such services to the public across Wales. This would tie in well with their wider role as a voice for patients. This additional remit for CHCs could be spelt out more clearly in paragraph 2 of Schedule 1 of the draft Bill[5]. The RCN believes that any change in the function, roles and purpose of CHCs in Wales will require a review of their current funding and resources. We urge that this review takes place.
THE WALES CENTRE FOR HEALTH
RCN Wales welcomes the proposed foundation of the Wales Centre for Health (WCH), which was first proposed in 1998 as part of the Better Health, Better Wales process. The RCN concurs that an all-Wales body is required for functions outlined in paragraph 8 of the explanatory notes of the draft Bill[6]. There is a need for an independent body to facilitate partnerships with the Assembly, the academic and voluntary sectors on issues relating to public health.
We would expect to see the involvement of nurses and health visitors as key members of the Centre if it were to succeed in fulfilling its objectives. Nurses and health visitors play a key role on promoting public health, both in terms of evidenced-based research and their practical experience of caring for patients. Their pivotal role in the WCH will therefore be crucial to its mission—both at management level and as WCH members. Public health is no longer the domain of one health profession and there is an urgent need to see the balance of health care professions working in public health addressed.
In the event of a transfer of staff from the public health divisions of health authorities or other bodies we would expect the WCH to honour the Transfer of Undertakings Protection of Employment (TUPE) Regulations of 1981. This does not appear on the face of the draft Bill or in its explanatory notes. The RCN would therefore seek an explicit assurance that TUPE standards would be adhered to in such cases.
CONCLUSIONS
The RCN welcomes the general approach of the draft Bill and particularly the manner in which has been consulted on. The statutory underpinning of Health Professionals Wales, the strengthening of Community Health Councils, and the foundation of the Wales Centre for Health are all positive steps that will contribute to the NHS modernisation agenda. However, we have made some constructive suggestions in this submission that—if taken up—will resolve some remaining concerns. We hope that the Welsh Affairs Select Committee will concur with these proposals and endorse them in their report on the draft Bill.
Board Secretary
June 2002
1 See article in the Institute for Welsh Affairs' quarterly journal Agenda, Spring 2002 p .35 Back
2 Robert Hazell, St David's Day Lecture (2001) to the Welsh Governance Centre, Cardiff University. Back
3 Paragraph 13, The Draft National Health Service (Wales) Bill Explanatory Notes (The Wales Office: 2002) Cm 5527-II. Back
4 Quote from Schedule 1 paragraph 4 (a)(i) of The Draft National Health Service (Wales) Bill, (The Wales Office: 2002) Cm 5527-I. Back
5 There was a degree of uncertainty on behalf of the parliamentary counsel present at a meeting of the Assembly's Health & Social Services Committee in May as to whether paragraphs 1 & 2 of Schedule 1 of the draft Bill would give CHC sufficient legislative authority to take on the role of generic independent advocacy services. Back
6 P .2 The Draft National Health Service (Wales) Bill Explanatory Notes (The Wales Office: 2002) Cm 5527-II. Back
| 
