Clause
102
OHPA
rules:
supplementary
Amendment
proposed: No. 227, in clause 102, page 50,
line 37, at end
insert—
‘(3A) Before making
rules, the OHPA shall respond to any representations made to
them—
(a) if the rules
affect the profession regulated by the Medical Act 1983, by the General
Medical Council, and
(b) if the
rules affect the professional regulated by the Opticians Act 1989, by
the General Optical Council.’.—[Mr.
O'Brien.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 7, Noes
10.
Division No.
9
]
Question
accordingly negatived.
Mr.
O'Brien:
I beg to move amendment No. 49, in clause 102,
page 50, line 38, leave out subsections (4) to (6).
The amendment
would leave out subsections pertaining to the Privy Council and is a
probing amendment on the role and activity of the Privy Council, a
point mentioned already. The memorandum on delegated legislation notes
that Privy Council approval enables the detailed scrutiny that is
required from these rules and regulations. Will the Minister detail how
that scrutiny will work in practice and, in particular, how the
regulatory bodies can influence that scrutiny? While the memorandum
notes that this mechanism of delegated legislation has been selected to
ensure consistency with the rule-making powers of all the regulatory
bodies, we are dealing with a slightly different case here as this is a
new body being established by the Government and somewhat distinct from
the grass roots of the profession.
Mr.
Bradshaw:
The proposal simply replicates the current
arrangements for the rule-making powers of other regulators, such as
the GMC or the General Optical Council. The advantage of Privy Council
approval is that it can then lay Orders in Council before Parliament,
thus ensuring parliamentary scrutiny. It can also vary the rules and
draft to ensure that they are legally
correct.
Mr.
O'Brien:
That is good enough for me, I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 102 ordered to stand
part of the
Bill.
Clause
103 ordered to stand part of the
Bill.
Schedule
8
Extension
of powers under s. 60 of Health Act
1999
Mr.
O'Brien:
I beg to move amendment No. 89, in schedule 8,
page 152, line 6, after ‘functions’, insert
‘pertaining to regulation’.
We reach
another important issue. The Bill allows an Order in Council to
transfer any of the functions of the Royal Pharmaceutical Society of
Great Britain or the Pharmaceutical Society of Northern Ireland.
The
amendment would limit that power to transferring functions pertaining to
regulation. Currently, the regulation of pharmacy is shared by two
bodies—the RPSGB and the PSNI. The Government have decided to
split the functions of the RPSGB, leaving it with responsibilities for
leadership within the profession and representation of the profession,
as with the Royal Colleges, and transferring its role in regulating and
inspecting pharmacy premises, pharmacists and pharmacy technicians to a
new body, the general pharmaceutical council, as set out in paragraphs
1.29 to 1.36 of the White Paper, “Trust, Assurance and
Safety”. As the explanatory notes put
it: “The
RPSGB’s responsibilities towards pharmacists for professional
leadership are potentially in conflict with its role as an independent
regulator for the profession itself. The professions are taking on an
increased clinical role in the treatment of patients, whereby
pharmacists have the autonomy to prescribe potent drugs. Therefore,
this dual responsibility does not provide sufficient reassurance to the
public that there is effective independent regulation of this role.
Separation of the regulatory system from that of professional and
clinical leadership will allow each distinct function to focus solely
on its core role...Amendments are required to section 60 of the
Health Act 1999 to allow an Order made under that section to remove the
statutory function of pharmacy regulation from the RPSGB and the PSNI
and transfer these functions to the proposed General Pharmaceutical
Council.”
12.15
pm
That
is the essence of what we are discussing here. My understanding is that
the RPSGB is happy with the separation of functions, so we will not
quibble with that. In its briefing, it notes that schedule 8 allows the
transfer of
“all of the
RPSGB’s
functions”
to the General
Pharmaceutical Council. Throughout the discussions between the RPSGB
and the Department of Health, it was understood by both parties that
only the regulatory and directly associated functions would be
transferred. The current wording would allow current or future
Governments to strip all functions of a membership organisation and
place them with an independent body that reports to Parliament. That
would place the profession’s ability to form a professional body
in the hands of a Government who could remove several functions from
the new body and place them within the public sector. The RPSGB
understands that the Government intend to set out in secondary
legislation the functions that are to be removed. The Government have
expressed the aim of extending the remit of that secondary legislation
to include more than regulation. Therefore, we need to be clear whether
they are trying to have it both ways, or whether there is some covert
agenda that has not been fully
exposed.
The
RPSGB maintains that, as the Bill stands, subsequent secondary
legislation could extend the remit further to include most of the
activities undertaken by the RPSGB. Its concerns are supported by
paragraph 329 of the explanatory notes, which
states:
“The
primary purpose of the inclusion of subsection (2A) is to ensure that
these statutory functions, which are separate but connected to the
regulation of individual practitioners, are brought within the scope of
section 60, so that changes can be made across all of the
RPSGB’s and the PSNI’s functions where
necessary.”
That is the
vital phraseology.
“For
example, this will facilitate the transfer of all of the RPSGB’s
and the PSNI’s (subject to a decision by Northern Ireland
Ministers to proceed in this way) functions under these Acts to the
proposed General Pharmaceutical Council which the Government intends to
create in the future by a section 60 order.”
I want to emphasis this next
point:
“However,
it is also envisaged that these powers will be used to modernise the
requirements in relation to pharmacy premises in
particular.”
While the
explanatory notes and the memorandum on delegated legislation suggest
that the power will be used on regulatory functions only, there is no
reflection of that and hence no limit to the Secretary of
State’s power in the Bill. That seems particularly obtuse when
our amendment would put it simply and succinctly. Settling that issue
is important not only for clarity of legislation, but because there is
real concern that if the Government wield that amount of power over the
RPSGB, they will severely hamper the body’s ability to criticise
the Government and represent its profession when the time
comes.
The
Government have given no reasons to the RPSGB as to why they want to
create powers beyond the scope of transferring regulatory functions.
While I should note that powers under section 60 are governed by the
affirmative resolution, it is important that the legislation should be
as tightly formed as possible. There is no reason for the
open-endedness of the drafting here. I hope that the Minister will
agree and accept that the amendment has been tabled both to clarify and
to assist him and his Government to be consistent with their declared
approach, which is not reflected in the drafting of the
Bill.
Sandra
Gidley:
I hope that my voice survives this debate.
I should declare an interest here as a fellow of the Royal
Pharmaceutical Society of Great Britain. It is a body to which I pay
considerable sums each year. This measure has caused great concern. It
is worth the Committee noting a little background. The Royal
Pharmaceutical Society of Great Britain is unique among professional
bodies, as it represents the profession and also regulates it.
Sometimes those two functions have not sat easily side by side. Until
fairly recently there was great resistance to changing, but it is clear
from the way that modern regulation is going that a body with a high
proportion of lay membership struggles to become an effective
representative body. I stress that now, except in Luddite quarters,
there is little or no opposition to the splitting of the
functions.
There is
concern, however, about which body is going to do what. Although the
Bill deals only with the setting up of the General Pharmaceutical
Council, the profession has also been vaguely promised that it can set
up a body akin to a royal college, the shape of which is currently
being consulted on in various ways. However, there have been few
promises of any funding, and the Government have, in some ways rightly,
taken a step back and said, “This is for the profession to
decide.” Nevertheless, the joint working in past years means
that some of the society’s functions have become intertwined.
For example, the education department deals with the setting of
standards, which falls neatly into the new GPhC’s remit, but
also deals with other educational matters that are perhaps more
relevant to a body akin to a royal college.
I shall not
pretend that separating the functions of the two bodies will be easy,
but it is not beyond the wit of man. It is only fair to the society and
its members, at a time when the profession is faced with a White Paper,
community pharmacists have just struggled with a large reclamation of
money for category M products and people are not sure what plans the
Government have for pharmacy, that there be far greater clarity about
which roles are to be transferred to the GPhC and which are not. I
support the amendment fully, because it would force the Government to
come up with some device by which that process can be
undertaken.
I am not
always a fan of secondary powers, but a clear commitment to regulation
or to putting a list of functions in the Bill on Report would be
helpful. It would give the organisation the necessary clarity in
transferring its regulatory powers to the GPhC by the allotted time.
The process is complex; it is not as straightforward as just saying
“These two departments will transfer to the GPhC and the others
won’t.” I cannot see any reason why the Government would
want to resist a change that would make the process more transparent at
this early
stage.
Mr.
Bradshaw:
I have sympathy with the spirit behind the
amendment, but our view is that it is based on a fundamental
misunderstanding of the schedule. There is no possibility of any
functions other than regulatory functions being transferred under the
Bill. The scope of section 60 of the Health Act 1999, which the
schedule is amending, is confined to regulation. It will therefore
enable only functions relating to regulation to be transferred to the
proposed new General Pharmaceutical Council. The schedule also confirms
that an order under section 60 of the 1999 Act cannot be used to
abolish either the RPSGB or the PSNI, as both have functions relating
to matters other than professional regulation. I therefore urge the
hon. Gentleman to withdraw the amendment.
Mr.
O'Brien:
No. We have made our case and we will press it to
a vote.
Question
put, That the amendment be made:—
The
Committee divided: Ayes 7, Noes
10.
Division
No.
10
]
Question
accordingly negatived.
Mr.
O'Brien:
I beg to move amendment No. 272, in
schedule 8
, page 152, line 8, at end
insert—
‘(1B) An Order in Council may not provide for
any function conferred on the Privy Council, in relation to any
profession to which section 60(2)(a) applies, to be exercised by a body
other than the regulator of that
profession.’.
I
could not help noticing when you lifted your clipboard, Mr.
Hood, that it says “shatterproof clipboard” at the
bottom. The day that we get a Government acceptance on one of our
amendments, it will shatter.
The provision
clarifies how the Health Act 1999 can be amended using a section 60
order. Paragraph 4(4) of schedule 8 removes the restriction in the 1999
Act that prevents a section 60 order from being used to transfer
functions exercised by the Privy Council to another person. The
explanatory notes say that it is anticipated the powers under paragraph
4(4) will be used
“to
transfer functions from the Privy Council to the regulatory bodies for
the affected professions rather than to third
parties”.
The amendment
would allow such transfers to be made only to the regulator of the
affected profession, and not to some other party. It would be helpful
for the Minister to clarify to which other bodies he might anticipate
transferring those functions or for what other reason the proposal
should not be adopted. I had to double check earlier, because the hon.
Lady said that she was going to press the amendment and I was baffled
by that, although it was very nice to have her
support.
Mr.
Bradshaw:
The hon. Gentleman made a slightly barbed remark
at the outset about our reluctance to accept amendments. With regard to
one of the earlier discussions about the requirement for a legally
qualified chair, although I clearly indicated that we were going to
address the matter, it was still pushed to a vote. I shall leave it
there.
I imagine
that the concerns behind the amendment are that the appointments
functions of the Privy Council could at some point be transferred to
individuals such as the Secretary of State. That would be an
understandable concern, and I want to assure the Committee that there
is no intention to undertake such a transfer. However, there are
circumstances in which the appointments functions carried out by the
Privy Council might be better carried out by a body other than itself
or the regulator of the profession—the Appointments Commission,
for example, which we have already discussed with regard to the
appointment of members and chairs to those
bodies.
Another
example of the sort of flexibility that might be needed is with regard
to the appointments of members of councils themselves. As I have said,
at the moment, the Appointments Commission makes the Privy Council
appointments under delegated powers, but in the future we might want to
look at where the bodies in Scotland, Wales and Northern Ireland could
have a role in relation to some of those appointments. Those are the
reasons for the flexibility, and I hope that in the light of that, the
hon. Gentleman will withdraw the amendment.
Mr.
O'Brien:
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
12.30
pm
Mr.
O'Brien:
I beg to move amendment No. 209, in
schedule 8, page 152, line 9, leave
out subparagraph (3) and insert—
‘( ) In sub-paragraph (2) after
“practice”, insert “or be persons included in the
register of members admitted to
practice”.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 161, in schedule 8, page 152, leave
out lines 9 to
12.
Mr.
O'Brien:
Amendment No. 209 is a probing amendment to
clarify the Government’s intentions on the lay-professional
balance on the councils. The Committee will recall that I made a
similar distinction on the fitness to practise panels. Amendment No.
161 has the same probing purpose.
Amendment No.
209 would amend schedule 3 of the Health Act 1999. As it stands, the
1999 Act prevents the imposition of a lay majority on the regulatory
bodies by secondary legislation. The amendment would ensure clarity of
lay and professional members of the councils of regulatory bodies. The
Bill will allow a lay majority to be imposed through secondary
legislation, through a section 60 order, which is made by Her Majesty
by Order in Council subject to the affirmative resolution. Under
schedule 8, lay majorities could be imposed by secondary rather than
primary legislation, as the current legislative framework requires. The
GMC in particular argued for clarity in the evidence sessions as a way
of strengthening independence from the Government, which is the
dominant provider of health care in the UK, and from any single group.
That independence is critical to ensure continuing confidence in the
regulatory system, as we have discussed many times.
In the
memorandum on delegated legislation, the Government note that the
provision
“will allow
councils of health professions bodies to have a lay majority, should
they wish. It will be used as and when such councils request such a
change”.
Will the
Minister confirm whether the Government have taken a position on lay
parity or majority? Will the councils truly be free to make such
decisions themselves, or will the Government urge or coerce them? There
is a valid concern that the Government are giving themselves the power
in order to have something to do if and when there is another
professional scandal—there may well be such a scandal. It is not
our job to provide hooks by which the Government can say that they have
done something when, in fact, the authority must rest with the panel
that we are considering.
Sandra
Gidley:
I tabled amendment No. 161 to tease out
some of the Government’s thinking on lay
members. I fully understand the public confidence arguments. The old
regulatory bodies had very low lay representation—a token
handful of members—which did not engender any sort of public
confidence. The numbers of lay members on all regulatory bodies has
increased significantly, and there is a lay voice, as it
were.
However, to
some extent, this is smokescreen approach. No attempt appears to have
been made by anyone to assess the impact of lay members. Has decision
making improved as a result of the greater proportion of lay members?
Do the public have greater confidence in the system? Have they even
noticed what is happening in professional regulation? Alternatively, is
the measure
simply a sop to the chattering classes who like to talk about public
representation on every board? I do not mean that pejoratively—I
think there are many situations in which we would benefit from
increased public
involvement. I
was fully behind the concept of increased lay representation—I
frequently challenged some in my own profession for being stuck in the
mud on the issue. I thought that the patient voice would be more
central, but, because of the nature of the people who are selected for
such positions, I do not think that that aim has been achieved in the
slightest, if it was ever an aim. Some lay members are extremely good;
others come across as little more than professional committee
sitters.
The selection
of lay members and what they can bring to the process is an issue. For
example, from talking to health professionals on various bodies about
fitness to practise, I learned that some of them are yet to be
convinced that lay members are necessarily a good thing. That is not,
as I cynically thought, because lay members are harder on the health
professionals. Often the reverse happens. The attitude that doctors, or
whoever it might be, cover up for their colleagues is in the dark ages.
The overriding aim of most health professionals who sit on a
professional regulatory body is that the profession is seen in a good
light. They do not want rotten apples in the barrel and to some extent
they are harder on their colleagues than other people. That is why I
ask whether there has been any change in decision making as a result of
having lay members, and what assessment is being made of the effect
they have
had.
Lady
Justice Smith said in her evidence that she wanted to enhance the lay
voice. I think that that is absolutely right. We are required to
produce an evidence base for many areas of policy these days, so I have
three simple questions. What evidence is there that increased lay
representation improves decision making? What assessment have the
Government made of the impact of lay members and the potential impact
of the lay majority? What attempt is made to balance the skills needed
in an effective regulatory
board?
Mr.
Bradshaw:
We are trying to ensure that the councils of the
health professional bodies can move to a lay majority should they wish
to do so. Currently they cannot and to enable them to do so is a
sensible freedom to give. The fact that osteopaths and opticians
already do have or are moving towards lay majorities demonstrates that
there is a desire among some people to do so.
In response
to the hon. Lady’s question, experience of the involvement of
lay members is positive. It is important to remind ourselves that the
genesis of the legislation—the hon. Lady referred to Dame Janet
Smith’s inquiries—is that public and patients need to be
reassured that the professional regulatory bodies are not dominated by
an in-built majority of professionals. That is a fundamental part of
the Bill. All we are seeking to do is to ensure that there is parity on
the professional bodies, which is I think supported by everybody except
the British Medical Association, and that if some regulatory bodies
wish to move to a majority, they can do so—at the moment they
cannot. No one will force them to do it, but if that is what they want,
they should have the freedom to do so. The impact of the amendments
would be to take that away.
Mr.
O'Brien:
I have listened carefully to the Minister. As I
said, it was a probing amendment and just to make sure the record is
correct, I wish to state that I am grateful to the hon. Lady and her
colleague, the hon. Member for Leeds, North-West, for adding their
names to our amendment—No. 161. I mistakenly suggested that they
should lay claim to that amendment. Considering what the Minister has
said, if further issues need to be pursued, there will be more
appropriate moments later.
Sandra
Gidley:
I noted that the Minister did not respond to what
the Government’s thinking was on the future of the balance. I
think it was the Foster report that said that if the bodies moved to
parity they would be reviewed in a few years, whereas if they decided
on a lay majority they would be left alone for a while. That signals
that the Government’s thinking was to try to move to lay
majorities in all cases. Did the hon. Gentleman get that impression
too?
Mr.
O'Brien:
Perhaps not with the same distinct clarity that
the hon. Lady seems to imply. It is always open to the Minister to jump
up and interject at any point if he wishes to clarify something. I dare
say that we will return to the matter so, on that basis, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
O'Brien:
I beg to move amendment No. 210, in
schedule 8, page 152, line 19, leave
out subparagraph (2) and
insert—
‘( ) In
sub-paragraph (2)(d) after first “to”, insert “the
investigation
of”.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 211, in schedule 8, page 152,
line 23, after first ‘to’, insert
‘adjudication
on’.
Mr.
O'Brien:
We romp on. The Health Act 1999 specifies
secondary legislation cannot be used to transfer core functions of the
regulatory bodies to any other organisation, so the amendments seek to
enshrine in legislation the investigation of the fitness to practise of
their registrants as a core function of the GMC and GOC, and that the
investigation function can be transferred to the OHPA or another body
by recourse to primary legislation only.
Paragraph
8(2) of schedule 3 to the 1999 Act enshrines the four functions of the
regulatory bodies as
“keeping the register of members
admitted to practice, determining standards of education and training
for admission to practice, giving advice about standards of conduct and
performance, administering procedures (including making rules) relating
to misconduct, unfitness to practise and similar
matters.”
The
fourth function, set out in paragraph 8(2)(d), relating to issues of
unfitness to practise, consists of two separate but key activities:
investigation of a doctor’s fitness to practise, and the
adjudication by panels of individual cases. The argument for separating
the two activities was set out in the fifth Shipman report and
supported by the Government. However, to ensure that the
separation
does not lead to the wholesale transfer of investigation as well as
adjudication, the primary legislation should be explicit that one of
the regulatory bodies’ core functions will remain the
investigation of a registrant’s fitness to practise. That would
also ensure the integrity of the four functions of the regulatory
bodies.
Mr.
Bradshaw:
It is clear from the hon. Gentleman’s
words that his concern is what I thought it probably would be: to
prevent the order-making power being used to transfer the role of
investigations to the OHPA. I entirely agree with that point. The
transfer of investigatory powers would be utterly contrary to our
reason for creating the body in the first place, and I can assure the
Committee that we have no intention of doing so. However, it is
important that we ensure to take the right powers now, so that we are
able to make the transfers that the OHPA will need. The role of the GMC
and the GOC, for example, is more than just the investigation of
complaints. They must consider whether the allegations are
“an impairment of fitness to
practise”
against the
standards that they have set; whether sufficient evidence can be
obtained; whether a case needs to be referred to the OHPA for
adjudication, or whether other action would sufficiently protect the
public.
“Investigation”
hardly covers the presentation of cases to the hearing panel. I think
that Members will agree that that stretches
“investigation” beyond its dictionary limits. Equally,
although the OHPA has no role in carrying out investigations, its
panels may, during the hearing, request the regulatory body to provide
further information that might require additional investigation. One
could argue that that could be defined as an investigatory function,
although it is clearly part of OHPA’s role as an
adjudicator.
Orders
under section 60 have proved an effective means of keeping professional
regulation up to date, and of responding both to changes and to public
expectation of regulators. The process for section 60 orders requires
public consultation on a draft of the proposed legislative changes, and
the order is subject to the affirmative procedure. It seems highly
unlikely that any attempt to transfer non-adjudication functions would
survive such scrutiny, nor would we ever wish to attempt it. I hope
that on the basis of those reassurances, the hon. Gentleman will feel
free to withdraw his
amendment.
Mr.
O'Brien:
I am grateful to the Minister, particularly for
the assurances that he has placed on the record. Of course, we would
always be more comfortable if they were in the Bill, but they are clear
from what he has said. He also prayed in aid the limits of dictionary
definitions. As someone who is reluctantly addicted to The Daily
Telegraph Saturday crossword, I can assure him that many
dictionaries have very different limits on true meanings. On the basis
of what he has put on the record, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Schedule 8 agreed
to.
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