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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Nursing and Midwifery Order and Draft Health Professions Order 2001

Fourth Standing Committee on Delegated Legislation

Monday 26 November 2001

[Mr. Bill O'Brien in the Chair]

Draft Nursing and Midwifery Order 2001

4.30 pm

The Minister of State, Department of Health (Mr. John Hutton): I beg to move,

    That the Committee has considered the draft Nursing and Midwifery Order 2001.

Despite the Committee's decision to discuss the two orders separately, I hope that you, Mr. O'Brien, will allow me to refer to the draft Health Professions Order when discussing the first order, given that there are obvious similarities between the two. To be able to refer to both during my initial remarks would help the conduct of our debate.

The two orders implement important reforms to the system of professional self-regulation for nurses, midwives, health visitors and the allied health professions. They will establish new regulatory bodies, streamline the current arrangements and deal more effectively with the complex range of issues affecting those vital professions.

Sir Paul Beresford (Mole Valley): I am sorry to intervene at such an early stage—I collected the order at short notice, so I am a little behind and trying to catch up. The Minister mentioned health visitors, but they do not appear to be included in the order, which relates only to nursing and midwives.

Mr. Hutton: When the hon. Gentleman has a chance to read the order properly he will see that it clearly relates to health visitors.

Mr. Oliver Heald (North-East Hertfordshire): On a point of order, Mr. O'Brien. In saying that the order relates to health visitors, the Minister implies that they are dealt with in the same way as nurses and midwives. I wonder whether you could clarify—

The Chairman: Order. That is a matter for the Minister, not for me. Perhaps the hon. Gentleman should seek clarification by way of intervening on the Minister.

Mr. Heald: Will the Minister give way?

Mr. Hutton indicated assent.

Mr. Heald: Does the Minister accept—I am sure that he does—that the order does not treat health visitors in the same way as nurses and midwives? Whereas the latter are to have a statutory register, the former are not; it is purely a matter of discretion.

Mr. Hutton: That is true, but my comments did not imply that the order treats nurses, midwives and health visitors in exactly the same way. What is clear is that the order regulates the health-visiting profession.

The orders have been the subject of extensive consultation and, I am glad to say, of broad agreement in general terms.

Ms Julia Drown (South Swindon): One particular issue has arisen as a result of the consultation to which my right hon. Friend refers. It is rumoured that in cases in which women insist on home birth but a health authority is unable or refuses to provide midwifery support, the women have threatened to give birth alone and send their partners or husbands away, lest they be fined. Under paragraph 45 of the order, the level of the relevant fine will be increased. Will my right hon. Friend confirm that there is no intention to fine husbands, partners or lay-attenders who do not pretend to be midwives? Paragraph 45 mentions ``attendance'', which means—

The Chairman: Order. Hon. Members must keep their interventions short.

Mr. Hutton: I have previously discussed these issues with my hon. Friend and I understand her perspective on article 22. It is a difficult issue because prosecutions in such cases are obviously not a matter for Ministers, so it would be wrong of me to indicate circumstances in which such a prosecution should be brought. The most important thing is that the delivery of the baby is safe.

Ms Joan Walley (Stoke-on-Trent, North): On that point, I have previously raised the matter in parliamentary questions and it is the subject of an early-day motion. Will my right hon. Friend tell the Committee whether he has reconsidered the representations made by the lay-group of midwives, who have expressed concern about the fine going from level 4 to level 5? Is he certain that there has been no confusion among civil servants in respect of the recommendations of JM Consulting, which assisted the preparation of the new legislation?

Mr. Hutton: My hon. Friend raises an important point. My understanding is that the orders were subject to consultation—I stand ready to be refreshed about the details. There was broad agreement—I am not saying that everyone agreed—that that was the right thing to do.

It is not a feature of the order that everyone who is prosecuted will attract the maximum fine. The order simply sets the parameters within which fines can be issued. My hon. Friend will find that the court that decides an offence has been committed has discretion as to the size of the fine. The absolute limit is £5,000, but there is no requirement for it to be levied in every case.

I shall reflect on my hon. Friend's comments. If the Committee approves the orders, it will be for the Health Professions Council to explore the issues: it has a power to issue guidance to the profession, and I am sure that it will do that. The extent to which I can reassure her and my hon. Friend the Member for South Swindon (Ms Drown) is limited, because I am not the Minister who decides prosecutions, and I certainly do not decide fines. My point is that it is important that home deliveries are safe. I do not want anything to be done that jeopardises the safety and well-being of mothers and of babies who have been born at home. The detail of how the arrangements work in practice is necessarily a matter for others.

Ms Walley: I understand that fines levied by the courts are a matter for the courts, but today we determine whether the fine should rise from level 4 to level 5. Will my right hon. Friend reconsider JM Consulting's recommendations? Its recommendation to increase the fine relates to people who are pretending to be midwives. Will he take a careful look at whether there has been a technical difficulty or a flaw in the way in which the recommendations have been interpreted by his Department?

Mr. Hutton: Of course I will take a careful look. If my hon. Friend waits until the end of the debate, I may be able to reassure her in greater detail.

The Government have been determined wherever possible to proceed on the basis of consensus, which is important for the long-term success of these reforms. We have therefore responded positively to many of the points made during the consultation process and several significant changes have been made to the two orders along the way—a subject to which I shall return. However it is also true that there are continuing concerns, some of which have been raised by my hon. Friends. I shall mention those issues later in my remarks and set out clearly for the benefit of members of the Committee why we have taken the decisions we have and how they are reflected in the orders.

Under the order, the Nursing and Midwifery Council will replace the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and the four national boards. The second order will replace the Council for Professions Supplementary to Medicine and its 12 uni-professional boards. I can confirm that the provisions of both orders are compatible with the European convention.

The proposals are a key component of our broader efforts to work in partnership with the professions to drive up and sustain quality throughout the health service. Public and patients are entitled to expect both that those treating them are properly regulated, and that there is consistency across professional boundaries. We signalled our intention to modernise regulation in the national health service plan in July last year. We set three tests for the regulatory bodies: first, they must be smaller, and have greater patient and public representation; secondly, they must have faster and more transparent procedures; finally, they must develop meaningful accountability to the public and the health service as a whole.

The orders fully reflect those commitments, but are only part of the continuing reforms. For example, we have already strengthened the General Medical Council's powers to deal with allegations against doctors, and we are working with the council on a wide programme of reform that covers governance, revalidation, registration and conduct procedures. We have embarked on reforms to the regulation of dentists, starting with an increase in lay membership of the General Dental Council and powers to require practitioners to undertake continuing professional development. In addition, the NHS Reform and Health Care Professions Bill will further strengthen and improve professional self-regulation.

Mr. Heald: The Minister is right to say that a lot of sensible changes are being made to bodies such as the GMC and bodies covering what were once called the professions allied to medicine. However, what is the purpose of the change that puts yet another body—a council for the regulation of health care professionals—above the GMC, the HPC and many other bodies?

Mr. Hutton: Has the hon. Gentleman read the Kennedy report?

Mr. Heald: Yes, I have.

Mr. Hutton: Then the hon. Gentleman knows the answer to his question. The arguments in favour of the council were carefully set out in the report.

Mr. Heald: Because Kennedy said so.

Mr. Hutton: It is not just that Professor Kennedy said that there should be such an overarching body—the argument for one is strong: it is to achieve consistency and further strengthen the system of professional self-regulation by strengthening the role of public interest in proceedings. The arguments in favour of a UK council are compelling and we look forward to debating with the hon. Gentleman and his hon. Friends in Committee. It sounds as though they do not acknowledge the need to strengthen professional self-regulation.

The proposals meet the tests set by the NHS plan. They provide for a streamlined structure of council, statutory committees and panels and allow for far wider lay participation and expert input from the professions. They provide a flexible enabling framework within which there is much greater scope for councils to design efficient procedures; a wider definition of unfitness to practise and more powers to deal with that effectively; and a duty to work in partnership with key interests such as employers, education providers, the professions and other regulators including the Commission for Health Improvement.

I have mentioned the need for and the benefits of consensus. The proposals have been endorsed by the professional bodies most closely concerned, particularly the Royal Colleges of Nursing and of Midwives, the Community Practitioners and Health Visitors Association, UNISON and the Allied Health Professions Forum. Their concern—and that of the Committee, I am sure—is that the law should be translated into effective action. The professions concerned are the backbone of the health service, which includes 635,000 nurses, midwives and health visitors and 132,000 allied health professionals. Delivering on our aspirations for the NHS depends absolutely on supporting those key staff and encouraging an active partnership between them and those whom they serve. That is why the two orders have much in common.

The principal purpose of the two new councils is set out in article 3 of each order. They will be required explicitly and for the first time to treat the health and well-being of patients as their primary objective. They will be expected to collaborate with and consult all those with an interest in their work—the professions, patients, clients, employers, education providers and other regulatory bodies, as well as bodies such as CHI, which deals with the quality of service provision. They will have to be open and proactive in informing the public and the professions about their work, from policy developments to individual decisions and the reasons for them.

The new councils' core function, set out in article 5, is to keep a register of qualified professionals. For that purpose, they will establish and monitor compliance with standards of education and training, conduct and performance. However, the legislation does not seek to define those standards and nor should it, as that is properly a matter for the councils themselves. In that respect the orders continue the tradition of 150 years of professional self-regulation. They are designed to modernise that tradition by providing a flexible and enabling framework within which the councils can respond rapidly and effectively to changes in the provision of services, education and practice, and public expectations, and giving them the tools to do that job properly.

Both councils will have wider powers to deal with individuals who present an unacceptable risk to patients, as set out in articles 22 to 33 of both orders. They will have powers to deal with registrants whose fitness to practice is impaired, whether through ill-health, lack of competence or misconduct. That will be a big improvement on the current limited powers, especially those of the CPSM, which is able to deal only with

    ``infamous conduct in a professional respect''

and has only one option for action, which is to strike off the professional concerned. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting—the UKCC—labours under a wholly opaque definition of misconduct, which is defined as

    ``conduct unworthy of a nurse''.

The councils will have a wider range of powers and sanctions to apply to registrants who are found to be unfit to practice, including cautions, conditional registration while retraining is undertaken or health is regained, suspensions and striking off the register in extreme cases where the practitioner needs to be removed from treating the public.

The councils will have a critical role in positively guiding and supporting the vast majority of practitioners whose fitness to practice is never in doubt. That is in article 21 of both orders. Under article 10 of both orders, they will be able to link continuing registration with evidence of continuing professional development. They will be able to propose how the register should be structured and what professional titles the Government should reserve by law to registered practitioners. That is in article 6 of each order.

The HPC will be able to initiate proposals for the extension of regulation to new groups, which is a big step forward. The CPSM was restricted by law to covering only 12 professions, but the new HPC will have no such restriction. Once established, it will be able to take on the regulation of other health care groups that are currently unregulated, with established standards of training and conduct and an agreed role. I pay tribute to the patience of such groups as operating department practitioners and perfusionists, who did not secure the limited slots available with the CPSM and naturally look towards the new HPC to take that work forward.

Both councils will be substantially leaner and more strategic than the current bodies. Their initial composition will be 23-strong, with an elected professional majority of one. That provision is contained in schedule 2(3) of both orders. Each council will have guaranteed membership from each of the professions regulated. However, the HPC will have an option to have 25 members—13 professional and 12 lay, with the president a professional, as is the case with appointments made to the shadow council. Of the 13, one will be the president and the rest will each represent one of the professions regulated by the council. That will give it scope to raise and properly to consider genuine differences arising in different professions or in different parts of the UK, but it will still be small enough to allow high quality, comprehensive debate about strategic issues and fast decisions about changing regulatory practices where that is needed properly to protect the public. As a further safeguard for the professions, alternate members are allowed to attend council meetings and to vote in place of registrant members who cannot attend.

We do not intend that those 23 or 25 people should do all the work by themselves. The council must also have four statutory committees to cover the main functions of a regulatory body. Those committees will be multi-professional, but there is no limit on their membership. They will cover joint education and training, investigating fitness to practice matters, conduct and competence and health. The only exception in respect of limits on membership applies to the education committee, which must not exceed the number of those on the council.

The NMC will have statutory committees including one specifically to advise on midwifery issues, which is a concern of my hon. Friend the Member for Stoke-on-Trent, North (Ms Walley). That is in recognition of the unique regulatory functions of midwifery supervision. Midwives are, rightly, anxious that they should have the final professional say in their regulation. The structure of the council provides that there will be an equal number of nurse, midwife and health visitor members. There is a ``no outvoting'' clause in the NMC order—under schedule 1(14)—so that matters that solely affect one profession cannot be decided by other professional and lay members against the majority preference of members of that profession.

Both councils may set up any other committees and panels that they consider they need, so they will have extensive opportunities to co-opt non-members to advise on professional matters or national policy, or to carry out detailed casework within the strategic framework that they have set. Each council will have guaranteed representation, both professional and lay, from each UK country. The standards set by the councils will be UK-wide, but they will need to take full account of the differences in service and education provisions for which the devolved assemblies are responsible. In particular, they will have the flexibility to enter into different monitoring arrangements in each country, which is provided for in article 15 of both orders. Both bodies will report to Parliament—to the Privy Council—which will also approve any statutory rules that they make. That is covered by article 50 of the NMC order and article 44 of the HPC order.

We have taken on board most of the concerns raised by those who responded to an earlier draft of the orders. Those included calls for safeguards to prevent home addresses of practitioners being published without their consent; a common approach across the professions to appeals from decisions on fitness to practice; stronger powers for the management of fitness to practice casework and related requirements to supply information; safeguards to avoid professional dominance of council business by alternates; and for the NMC to have a duty to make rules on the exercise of functions by local supervisory authorities for midwives. That is covered by article 43.

I believe that the proposals before the Committee have wide support as representing the best way forward. In each case, they replace from scratch an entire regulatory system. They are necessarily complex and comprehensive because they replace the provisions of two previous Acts of Parliament.

I want to highlight two additional issues. First, I shall not pretend—it would be wrong to do so—that we have reached total consensus. We have not. However I hope that the points of difference will be resolvable over time as the new arrangements bed down and establish their worth. On the NMC side, concerns have been expressed by many health visitors—the hon. Member for Mole Valley (Sir Paul Beresford) tried to raise this issue—about the proposals as they affect health visiting.

There are just under 25,000 health visitors in the United Kingdom and they are, uniquely, the only part of the profession with a post-registration qualification leading to registration and entry which is confined to practitioners who are already qualified nurses or midwives. In the wide-ranging consultation on the orders undertaken by the independent review team, 76 per cent. of all respondents and 59 per cent. of health visitors agreed that they were specialist nurses. JM Consulting recommended that they be treated in the same way as such specialists, with a post-registration qualification recorded in the register rather than required as a licence to practice. The Government made it clear from the outset that that was the one recommendation that they did not accept. That decision acknowledged the critical importance of health visitors in delivering the Government's public health strategy. The influence of that consideration has, if anything, strengthened since then, therefore we have made provision in the order for separate representation of health visitors on the council and for there to be a separate part of the register for them. The CPHVA, which represents health visitors, hailed that decision as ``a great victory''.

Specialists in community and public health practice, which covers the whole range of health visitors' current and potential activities, will be entitled to be consulted on all matters affecting them, and the council will have to have regard to their interests. We have not embedded the title ``health visiting'' in the order because, although we believe that it is important to preserve health visitors' current registration status, we do not want to constrain the council to take a narrow view of health visitors' current role. That will enable the NMC to develop professional standards to reflect the changing work force needed by the modern NHS and to reflect evolving service needs in each part of the United Kingdom. The orders fully protect the interests of health visitors, ensure that proper regulatory standards are set and met, and establish the flexibility that the new council will need to respond to future developments. CPHVA recognised that, saying:

    ``This new legislation will guarantee that the public will continue to be served by competent and appropriately educated health visitors.''

Turning briefly to the order establishing the Health Professions Council, concern was expressed about the position of chiropodists. The hon. Member for North-East Hertfordshire (Mr. Heald), who is leading for the Opposition, has also raised the matter with me. The profession is divided between those who are state registered—about 8,700 individuals in both NHS and independent practice—and a broadly similar number who are not. The titles of those professions are currently regulated by the CPSM—


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