NHS Reform and Health Care Professions Bill

[back to previous text]

Mr. Heald: The Minister keeps saying that this is a last ditch, reserve power. If that is so, why does he say that it is desirable instead of essential, vital or something that connotes an exceptional circumstance? That is not the type of language that one would expect for a reserve power. Can the Minister give an example of a reserve power's being given because it was desirable rather than vital, immediately necessary or essential?

Mr. Hutton: No; I cannot give the hon. Gentleman an example, but there may be one. I do not have it at my fingertips, but I shall try to establish whether there is one. The word ''desirable'' may not have been used in such scenarios, but the language does not subtract from my argument and the way in which we envisage the clause working. It will be a serious step for the UK council to take and it can do so only if it is satisfied that it needs to take that action to protect the public interest. That is a high threshold, which does not constitute a generalised power to let rip across the rules of all the regulatory bodies. If I thought for a second that that was what the clause meant, I would amend it, but having taken advice I am perfectly satisfied that it is not so. I will be happy to entertain wider discussions with the hon. Member for Oxford, West and Abingdon, perhaps on Report.

I suspect that if I keep going I shall start to repeat the arguments that we have rehearsed extensively over the past 45 minutes, and I do not want to detain the Committee with repetition. There is also the danger of hesitation, which I certainly want to avoid. We have been around the houses pretty comprehensively. I have tried to explain to the Committee the nature, origin and purpose of the clause, and I hope that my amendments, which make it clear that we expect a process of consultation with the regulatory body to precede any directions under clause 25(2), have reassured Opposition Members about the way in which we intend these powers to be exercised.

Mr. Heald: The Minister has set forth his case, but I cannot say that I am satisfied, although in respect of amendment No. 238 he convinced me that the duty of co-operation would be based on reasonableness. That is welcome, and fits with my view of how the duty would be construed.

However, more important, the wording of clause 25(2) is not what one would expect with regard to the type of reserve power that the Minister claims that it provides. Saying

    ''If the Council considers that it would be desirable''

is not saying, ''If it is vital in the public interest'', but something less than that. As we know, parliamentary draftsmen often use language that is as wide as possible

Column Number: 396

in order to give the Government or bodies such as the council the greatest amount of scope, and I heard what the Minister said about his intentions for this body. However, we must legislate on the basis of what the law will provide for. In this case, it will provide that if the council considered it to be

    ''desirable . . . for the protection of members of the public''—

another very wide expression—it would be able to direct the regulatory bodies.

Regulatory bodies such as the Royal Pharmaceutical Society of Great Britain believe that they have accountability to Parliament—indeed, they are rather insistent about it. That is why they suggest that the laying of a report before Parliament would be an appropriate measure. The Minister mentioned the interaction of the provisions with the report of the Bristol royal infirmary inquiry. The presidents of the regulatory bodies strongly support Professor Kennedy's comments in paragraph 75 on page 349 of the report:

    ''The purpose of the system of regulation must be to assure the public of the competence of healthcare professionals and, when necessary, to protect them . . . An effective system of professional regulation . . . needs an independence from the professions and from government which allows it to act in the public interest.''

The point that is being made is that the new council is a non-ministerial Government Department and that, if it is to direct regulators in this way, the balance that Professor Kennedy is talking about is, arguably, lost. Although the Minister may speak about his constructive dialogue with the various regulators, the fact is that he has not satisfied them. Those people have his support and confidence. They include the presidents of the shadow Nursing and Midwifery Council and the shadow Health Professions Council. Those are people that he approves of and even, in many cases, had a hand in the appointment of. If those people say, ''Thank you very much for the constructive dialogue, but we are not satisfied,'' it is incumbent on the Committee to look again at what the Minister is saying. He is saying that this regulation applies only to extreme cases, but in our view that is not the wording of the statute. If the Minister agreed to take another look at the word ''desirable'' in clause 25(2) that would at least be something, although it would not go far enough for me. The Minister does not seem to be saying even that. He seems to be suggesting that it is not possible.

When the Minister was explaining the way in which the council would be able to effect the changes, he suggested that recommendations would be made, but it was not for the council to decide whether to change the rules. The Minister then said that, technically speaking, the Privy Council would take the decision on the basis of the advice of Ministers. It is incumbent on the Committee to look at the reality of the situation. Is the Minister seriously saying that he can think of any circumstances where the Council for the Regulation of Health Care Professionals would suggest or recommend that it was necessary to make changes to the rules? Is there any situation in which the Ministers would say, ''Oh no, we will not do that''? It does not

Column Number: 397

seem likely. The Minister may be able to cite plenty of examples in council practice and say that it happens all the time—that recommendations are made to the Privy Council and Ministers are always saying that they will not act on the recommendations, but will do something different—but I doubt it.

In Opposition Members' view and experience of the way that Governments work, if a body makes a recommendation, that is it. If the Minister feels that this is a good safeguard, it will help if he provides an example of an occasion when something similar has happened and Ministers have used discretion to change the recommendation of a regulatory body.

Let us consider the breadth of the organisations that are involved in supporting the proposal. The Royal Pharmaceutical Society of Great Britain speaks about its concern about

    ''potentially sweeping powers of direction by the council proposed in clause 25. No real limits are specified on the use of these powers, the frequency of their exercise or the circumstances in which they may be deployed.''

That is the view of a highly respectable and well-thought-of body that is responsible in the field and that would wish to regulate its own profession effectively. That covers the pharmacists.

The Minister has sometimes criticised the British Medical Association, but I believe that he would accept that on such an issue it would try to find a sensible, practical, ethical solution that would meet the case. The BMA's view is that the provision to allow the council to overrule and control the General Medical Council's policy decisions is potentially subversive of the latter's role, and thus of the principle of professionally led regulation. It is going so far as to call what the Minister is doing subversive. That is pretty strong language from an organisation such as the BMA.

I have mentioned various presidents of organisations. I have personally met representatives of the General Medical Council, which is deeply uneasy about the power. I am asking the Minister whether there is any scope for him to take the matter back and consider whether he could be satisfied with the laying of a report before Parliament as the way forward.

I am reliably informed that experience shows that the use of the health service commissioner has been beneficial in each of the small number of cases in which it has been necessary. Given that the Minister recognises that we are talking about a small cadre of cases and that this is a recognised way of bringing an important issue in the health field to the attention of everyone, including us, why is Parliament being cut out of the loop? The Minister mentioned the Privy Council and the way in which it operates. I had not appreciated till then that, rather than Parliament making a decision on what will happen next after a report is laid before it—that is what the presidents of the various regulatory bodies and I are suggesting—by the route that the Minister suggests, the people who ultimately decide are Ministers.

That would probably not be an exercise of a very real discretion, but we return, as we have so often in the Bill, to a situation in which the Secretary of State is retaining powers and discretions, rather than releasing

Column Number: 398

them, even though he says that he wants to set up an independent body. It is another example of micro-management for which we regularly criticise the Secretary of State. Either he is committed to arm's-length regulation or he is not. Will the Minister think again?

Dr. Harris: I listened with interest to that exchange. The hon. Gentleman made comments that I would have made, but I have a few others for the Minister to consider.

It is important to deal with the Kennedy report. The Minister rightly realised that I had recognised that one cannot simply say that what is in the Kennedy report must be in. Otherwise the Government's policy on medical negligence litigation would be decided before the outcome of the Committee and a wide range of other recommendations in the report. I do not dispute, however, that the words that the Minister cited are in there, I think in recommendation 72.

The Minister will not, however, find in the report the recommendation that the overarching Council for the Regulation of Health Care Professionals should not have a majority of members appointed by the regulatory bodies. They will more easily realise, on the basis of their experience, the difficulties in seeking a balance between some of the issues at stake.

It is interesting, although to a certain extent unfortunate, that the Minister cited a paedophile case as an example, although I accept that he did so because I requested him to cite a case. That exemplified the difficulties that could exist. This might be a difficult point to make, but it is necessary. No one should be under any misapprehension that I am not in favour of protecting the public from health professionals, especially those with the most power to damage them. That often, but not only, means doctors. A balance, however, must be struck. There is, as I hope the Minister will accept, no perfect system of regulation that will always involve maximum fair play and consideration for the interests of both health professionals and the public.

I have an example, which might be more relevant than the one that the Minister gave. Arguments have been voiced that when the councils that regulate health professions publish their registers, they should give more details of the background of the health professionals—even including their home address—than those professionals would like. There must be a balance. It is not disputed that more information available to the public on a register, including details that professionals might not want to release because of their personal safety, will generally aid the protection of the public. If people are concerned about someone living at a certain address who might be using pseudonyms, for example, having that information available to the public will, at the margins, increase their protection.

There is, however, a counter-balance: the protection of the hundreds of thousands—if not millions when it is all added up—of health professionals whose interests should also be considered. That is not the primary purpose of the Council for the Regulation of Health Care Professionals, which aims to protect the

Column Number: 399

public. That is also the primary purpose of the councils that regulate the professions, through proper education and training standards, fitness to practise and recommendations on the ability to practise due to health.

Nevertheless, we as a Parliament must recognise that there are conflicting interests. It is quite possible that the CRHP will consider itself bound, under its functions, to deal with the protection of the public. That is right. Therefore, giving it power to direct another body means that that balance might not always happen. Certainly that is the case in the example that I gave.

Coming to the nub of the matter, the Minister defended the current language. I cannot remember the exact wording that he used to do that, but at the beginning of his remarks he used a negative term; I think that it was ''unlimited''. As the hon. Member for North-East Hertfordshire said, he used other terms, which I wrote down: ''extreme cases'', ''last resort'', ''last ditch'', ''ultimate last ditch'' and ''reserve powers''. None of those are in the Bill. The hon. Gentleman pointed out—a remark that I was going to make—that ''desirable'' is desirable, not essential or necessary, and that the council ''considers'' does not mean that it is convinced. I accept that that is not a parliamentary expression, but the council might consider something to be desirable on a balance of judgment, or on a majority decision. That is not a last resort, an ultimate last ditch or a reserve power but it is perfectly possible, and if the council does that, it might feel that it is following what the Bill asked it to do.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 11 December 2001