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Public Bill Committee Debates

Draft Health Care and Associated Professions (Miscellaneous Amendments) Order 2008

The Committee consisted of the following Members:

Chairman: Robert Key
Bacon, Mr. Richard (South Norfolk) (Con)
Bone, Mr. Peter (Wellingborough) (Con)
Bradshaw, Mr. Ben (Minister of State, Department of Health)
Clarke, Mr. Charles (Norwich, South) (Lab)
Cooper, Rosie (West Lancashire) (Lab)
Dorrell, Mr. Stephen (Charnwood) (Con)
Heyes, David (Ashton-under-Lyne) (Lab)
Lamb, Norman (North Norfolk) (LD)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Mactaggart, Fiona (Slough) (Lab)
Moffatt, Laura (Crawley) (Lab)
Mulholland, Greg (Leeds, North-West) (LD)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Tipping, Paddy (Sherwood) (Lab)
Wood, Mike (Batley and Spen) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Richard Ward, Celia Blacklock, Committee Clerks
† attended the Committee

Eighth Delegated Legislation Committee

Wednesday 25 June 2008

[Robert Key in the Chair]

Draft Health Care and Associated Professions (Miscellaneous Amendments) Order 2008

2.30 pm
The Minister of State, Department of Health (Mr. Ben Bradshaw): I beg to move,
That the Committee has considered the draft Health Care and Associated Professions (Miscellaneous Amendments) Order 2008.
The draft order is the second in a series of orders subject to the affirmative procedure that form part of the Government’s reform and modernisation of the regulation of the health care profession. Some of the Members present may recall that we had a similar debate on the Nursing and Midwifery Council a month or so ago. Public concerns and doubts based on the perceived partiality of the regulators have threatened to undermine patient, public and professional trust in the system of professional regulation. The aim of the reforms is to enhance public confidence and the ability of the health care regulatory bodies to protect the public interest and deal with poor performance and professional standards. The draft order makes various amendments to the framework legislation for the regulation of doctors, opticians, osteopaths and chiropractors. All the measures in it are supported by all the regulatory bodies covered by the order, and I commend them to the Committee.
2.31 pm
Mr. Stephen O'Brien (Eddisbury) (Con): It is a pleasure to serve under your chairmanship, Mr. Key. I am glad that we have the opportunity to debate this order under the affirmative procedure. It is a crucial part of our role to scrutinise not only the primary legislation that this Government churns out in such vast quantities, but amending orders such as this one. I hope the Minister will take note that, during consideration of the Health and Social Care Bill, where he and I were in similar positions as we are now—and often in this room—I sought make a number of the potential statutory instruments subject to the affirmative procedure rather than, as the Government wanted, the negative procedure. Perhaps he will be mindful of my efforts when his noble colleagues table Government amendments to the Bill in another place.
I note that the order has been consulted on and that, as a result of that consultation, the Government have withdrawn two of the original provisions, one of which touched on increasing parliamentary scrutiny. I would be grateful if the Minister explained how he will reintroduce those measures.
The costs identified in the regulatory impact assessment are £480,000 to £2.26 million, with no monetised benefits. I hope the Minister will take the opportunity to give us a little clarification about what seems to be a rather large range of costs and the lack of monetised benefits.
I confess to being somewhat perplexed by the fact that the draft order has come before us now—before the Health and Social Care Bill has concluded its passage through Parliament. Indeed, the RIA anticipated that the order would come into force in April 2008, before the Bill had even gone to the other place. Perhaps the Minister can explain the delay.
On the one hand, could the Government not have saved parliamentary time and achieved these measures through schedules to the Bill? On the other hand, the House of Lords has sought to debate the subjects raised in the order, particularly the appointments to council positions, notably through the amendment tabled by Baroness Gardner of Parkes, which would allow for an elected element of practising doctors on the General Medical Council, instead of all the doctors being appointed. Surely, having failed to include the measures in the Bill, the Government should wait until the Bill has received Royal Assent to debate the draft order?
One of the hard-fought debates on the Health and Social Care Bill, as the Minister will recall, was on the inclusion of local involvement networks on the face of the Bill. Indeed, some amendments to that effect were tabled by Government Back-Benchers—the hon. Members for Luton, North (Kelvin Hopkins) and for North-West Leicestershire (David Taylor), neither of whom are here today. Although the Minister resisted and rejected such proposals throughout the Bill’s passage through the Commons, we now learn that the Government have finally seen sense and agreed in the other place what they could not bring themselves to concede here. The phrase “pride of authorship” comes to mind.
I hope that the Government are not guilty, yet again, of simply being too frightened of losing face, because today we see again their stubborn unwillingness to give LINKs any real power on behalf of patients and the public. Despite respondents to the consultation stating that the provisions did not go far enough, and despite the Government
“supporting the view that there needs to be greater patient and public involvement”,
they will not use this opportunity to establish a statutory relationship between the councils and the LINKs. The simple question is why not?
I note that the order is applicable to the whole United Kingdom. Will the Minister confirm whether action is needed by our colleagues in Wales, Scotland and/or Northern Ireland to bring it into effect? It will be important to have that on the record today.
The major change the order effects is in the size of and the process of appointment to the regulatory bodies. It is clear from the work that has been done that the move away from election to full appointment has been made, and that has been accepted by the regulators. However, it is important that health care professionals feel that their views are adequately represented by the council. What measures does the order put in place to deliver that? What guidance will the Minister give to the regulators? It is also clear that those who are elected representatives of medics in other contexts—the local medical committees, the British Medical Association, the royal colleges and so on—should have such confidence from their colleagues as a factor in considering whom to appoint.
Orders made under the powers in this instrument will set out the number of lay and professional members, and all councils will have parity of membership. That emanates from one of our debates on the Health and Social Care Bill. However, under the Bill, the law limiting councils to parity or a professional majority will be repealed and the move to lay majorities sanctioned. The explanatory notes to the order state that:
“some of the Regulators have indicated that they are considering a move to a lay majority”.
Will the Minister explain what process the councils will go through in the move to a lay majority? They have a thin line to tread between retaining the confidence of the public and retaining the confidence of the professionals whom they regulate. It is clear that a lay majority might have an impact upon that. Will members of the regulatory bodies have a say in such a move? That is particularly important given the concerns about the balance between lay and professional members raised in the consultation on the order.
The other big measure in the order is the temporary registration of doctors in the case of a national emergency, such as an influenza pandemic. It is therefore quite properly something that everybody should be deeply concerned about. The move is sensible—much more sensible than the draconian public health measures set out in the Health and Social Care Bill. The notes say that “Consideration is being given” to preparing those leaving the register for that eventuality. Will the Minister sketch out what such preparation would entail?
The order makes provision for both individuals and groups to be registered. For individuals, would that include mobilising, for example, highly skilled asylum seekers? It is important that we know the details. As for groups, will the Minister explain what groups he has in mind and how the members of that group will be assured of their registration?
The notes make it clear that:
“Registration would only be temporary and the registrants would not acquire rights to practise as doctors elsewhere in the European Economic Area or retain their rights to practise in the UK once the emergency was over.”
Can the Minister confirm that he has sought legal advice—from the Attorney-General or his office, I assume—on that point? I assume he will not publish it, but I would like to know whether legal advice has indeed been sought.
Presumably, those being registered would have to be paid. Would that payment be made through the NHS and what infrastructure has the Minister put in place for rapid reimbursement? Can he also confirm whether, for example, the Transfer of Undertakings (Protection of Employment) Regulations would apply?
Given that the measure affects doctors who will be leaving the register on retirement or age grounds, will the Minister comment on the annual retention fee? I have received a number of representations from older doctors on this subject. Currently, doctors who are over 65 are exempt from the fee, but the age discrimination regulations now make that illegal—there is always a downside—with the result that from 31 October this year, they too will have to pay to remain on the register. It seems ludicrous that at a time when there are numerous pressures on the medical work force and we are preparing as a country for emergencies such as an influenza pandemic, political correctness should penalise older doctors, create bad feeling and, no doubt, drive many away. What do the Government intend to do about that?
There are a number of other minor measures in the order on which I shall touch briefly. It is encouraging to see a move towards parliamentary accountability, with the regulators being required to lay their annual reports before Parliament. Will the Minister give hon. Members the opportunity to debate those reports? I hope that, at the very least, he will ensure that it is always the subject of conversation with the business managers.
It is interesting that the order changes the system for approval of providers of primary medical qualifications by removing the restriction that only universities or combinations of universities can be added. That opens the list up to university colleges and medical schools. I would be grateful if the Minister outlined the reasoning behind this measure and the bodies likely to be added to the list. I note that the consultation report states that most respondents supported that proposal—30 agreed with the move and eight opposed it. Will the Minister outline which organisations opposed it and the reasons they gave? Will he also confirm that an absolute standard for primary medical qualifications will be retained?
I assume that the omission of sections 8 and 9 of the Medical Act 1983 by the order is a consequence of this measure. Section 9 deals with standards in education falling below the standards needed in the eyes of the education committee of the General Medical Council. Will the Minister confirm that the protections of standards will be kept in place and how that will be done?
I have raised a number of points, and I hope the Minister will have the opportunity to respond seriously and in some detail, particularly given the brevity of his introduction. I have laid out the points which need clarification and where there may be some debate. We all seek better regulation of health care professionals, with greater assurance required for the public and, ultimately, world-class care for patients. We hope that, after we have received clarification, we will be able to support the order.
2.41 pm
Sitting suspended for a Division in the House.
2.56 pm
On resuming—
Greg Mulholland (Leeds, North-West) (LD): First, Mr. Key, I apologise for being slightly late for the start of the Committee. I received an important phone call just before I left my office.
I will not detain the Committee long. There are measures in the order that we welcome and have welcomed previously, particularly the increased parliamentary accountability and the annual reporting requirements. However, I want to put on the record once again our concern about the all-appointed council. I will not go over the arguments again—we had them, and the Minister listened and responded—but I want to re-emphasise the fact that there remains concern about the legitimacy and confidence that such a council will have. To echo the comments made by the hon. Member for Eddisbury, the possibility of a lay majority is a matter of concern. As the Minister has already acknowledged, it is important that the change has the confidence both of the profession and of the public, and I hope that he will be able to reassure us that they remain at the forefront of the Government’s thinking.
2.57 pm
Mr. Bradshaw: The hon. Member for Eddisbury asked first why we had not waited until Royal Assent for the Health and Social Care Bill to lay the order. The only part of the Bill that is strictly relevant to the order is the part that enables one of the councils to have a lay majority if it wants. Given that a number of people—not least the families of the victims of Harold Shipman—have said that we should already have made progress on reforming professional regulation, we thought that it was right and proper to introduce the measure and that the affirmative procedure was the most sensible way of dealing with it.
The hon. Gentleman asked what would happen to the measures that have been withdrawn relating to whether statutory instruments approving regulatory body rules should be laid before Parliament. As I understand it, they were withdrawn after internal discussions with the counsel to the Joint Committee on Statutory Instruments. They are still under consideration, but a further order would be needed to introduce them again.
The hon. Gentleman asked about the cost-benefits. They will be different for each of the regulators, and detailed impact assessments will be prepared to accompany each constitution order. He asked whether action would be required by Wales, Scotland and Northern Ireland to bring the order into effect. I am advised that the answer is no. It is done by order of the Privy Council; the devolved Administrations are advised, but not directly involved.
The hon. Gentleman asked about the process enabling lay majorities. Again, without going over debates we have had previously in this Committee Room and others about the reasons for lay parity or lay majorities, that was another specific recommendation of Dame Janet Smith’s inquiry into the Shipman murders. They will need a further order made under section 60 of the Health Act 1999, which will not happen unless the council itself wants or recommends a lay majority. We will consult the professions and the regulators as part of that process, but we have placed a moratorium on any change until 2011, when the whole landscape of professional regulation will be reviewed to see how these reforms have settled in.
The hon. Gentleman then asked a number of questions about the registration of emergency doctors in the case of, for example, a flu pandemic. We have not yet decided who would be registered, but we will work with the General Medical Council on this matter. Recently retired doctors constitute the most likely and obvious group. He also asked whether asylum seekers may be included. We have not ruled out doctors from overseas who have not yet been through the process, but nor have we ruled them in. We need to discuss the matter further with the GMC.
The hon. Gentleman asked whether the temporary registration of emergency doctors would lead to their gaining full EU rights. Our legal advice is that that would not be the case—they would not gain the right to practise elsewhere in the EU. He also asked about the retention fee. I am advised no fee would be charged for temporary registration. On fees for retired doctors, I understand that the GMC has taken legal advice on this. It is a matter for the GMC, as the Privy Council no longer approves GMC fee rules.
The hon. Gentleman suggested that we have lively and well attended debates on the councils’ annual reports. I asked my officials whether that has happened to date and the answer came in the negative, but I am sure it is always open to hon. Members to suggest through the usual channels that time should be found to debate those scintillating reports. One could think of a recent example where that might indeed have been justified by the public interest in the Nursing and Midwifery Council.
The hon. Gentleman asked who did or did not support the changes relating to medical education. I have to apologise, as we do not have that information in the briefing notes. I will have to go back to the original returns and write to him about that.
Finally, in response to the point about all-appointed versus elected councils, one might say to the hon. Member for Leeds, North-West that some of the difficulties we have had with one of the regulatory bodies, not just in recent months but for years, go back to the problems that arise from elections. That is one of the reasons why not only the Government but the councils themselves think that the order sets out a sensible way forward.
3.2 pm
Mr. O'Brien: The Minister is right to observe the difficulties that arise from elections. We have had that debate and I accept the track that we are now on.
The Minister might want to ensure that his officials look at a parallel dating back 20 years. The profession of solicitors has always had a form of election within its constitution for president and so forth. There was a time when that went seriously out of sync with the way the profession sought to be portrayed and regulated. The regulation of solicitors has since changed. Because there is such a wide waterfront in terms of the way the profession operates—from a single-handed practice in a rural community to a huge global firm of partners—it was quite difficult to have a single professional body. That remains the case, but a much better regulated settlement has been found. That is probably a good example to look at to inform this debate as we go forward to 2011.
Question put and agreed to.
Committee rose at three minutes past Three o’clock.

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