Health and Social Care Bill

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Clause 105

The Council for Healthcare Regulatory Excellence
Kelvin Hopkins: I beg to move amendment No. 249, in clause 105, page 51, line 32, leave out subsection (3) and insert—
‘(3) After subsection (2) of that section insert—
“(2A) The main objectives of the Council in exercising its functions under subsection (2)(b) to (d) are—
(a) to protect the public through encouraging consultation between the regulators and such other parties as the Secretary of State shall by regulation define about the functions of statutory professional regulation, and
(b) to protect the health, safety and well-being of patients and other members of the public in co-operation with such other regulatory agencies as the Secretary of State shall by regulation define.”’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 127, in clause 105, page 51, line 34, leave out ‘promote’ and insert ‘protect, promote and maintain.’.
No. 253, in clause 106, page 52, line 39, leave out ‘promoted’ and insert ‘protected’.
No. 254, in clause 106, page 52, line 43, leave out ‘promote’ and insert ‘protect’.
Kelvin Hopkins: I am pleased that my hon. Friend the Member for North-West Leicestershire (David Taylor) is present to hear our debate. I hope that I can do justice to his amendments, which I support.
The concern is to strengthen the role of the CHRE and to firm up the clause by substituting “protect” for “promote”. “Protect” is a stronger word and conveys what we want the CHRE to do. We also want to make more definite and specific the role of the CHRE in its operations. The proposed wording would be a significant improvement and I hope that it will be accepted. The word should clearly be “protect”, for the CHRE is the overarching body charged with being the
“authoritative independent voice for patients on the regulation of professionals”
in health care, to quote from the White Paper “Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century”.
Regulators, such as the GMC, have had public protection as part of their remit, and that should not be weakened in the CHRE by merely requiring it to promote the health, safety and well-being of the patients. We should be strengthening patient protection. I hope that my hon. Friend will look again at the wording of the clause.
More generally, the Minister will be aware that ever since the community health councils were abolished Labour Members have been concerned about the strength of protection for patients and of patient representation, and about the opportunities for patients to seek redress in their problems with the health care sector. I am still concerned that we do not have strong enough protection and representation for patients. I want the shop-front approach to patient representation that was provided in my community by the community health council. Ordinary people—not necessarily skilled or articulate—could go and talk to someone who was sympathetic about their problems. The patient advice and liaison service inside hospitals has to some extent compensated for that, but it is not the same as the community health councils. We need stronger representation.
Our wording would reassure me and others, such as my hon. Friend the Member for North-West Leicestershire, who are concerned. He spoke at length on Second Reading and made the points more effectively and strongly than I can. I agreed with his speech, which I have since read. I hope that my hon. Friend the Minister will think seriously about altering the wording.
Sandra Gidley: The Liberal Democrats have tabled amendment No. 127, which has a broadly similar aim to amendment No. 249. The definition for the main objectives of the CHRE as it stands says that the council is
“to promote the health, safety and well-being of patients and other members of the public.”
Our amendment would change that to
“to protect the health, safety and well-being of patients and other members of the public.”
Health promotion is laudable, but it is not the same as protection. There is a need for consistency between the objectives of the CHRE and those of the regulators. The Bill as drafted does not replicate the precise wording of the objectives set for regulators, which recently amended legislation describes as to “protect, promote and maintain” the health, safety and well-being of members of the public and patients. Our fairly simple amendment would bring those strands of legislation into line with each other so that there are no conflicts and everybody is clear about what the duty is.
Public protection is what this Bill is all about and it is somewhat surprising that protection has been left out of the clause. I am hoping that we may strike lucky—[interrurption.] I see that the Minister is going to disappoint me. On that note, I shall sit down.
Mr. O'Brien: On this occasion I also have to disappoint the hon. Lady. I have looked carefully at the amendments, and pay tribute to the hon. Members for Luton, North and for North-West Leicestershire for their wonderful support when we had the great campaign on community health councils, with which I was particularly involved.
I have difficulty with the amendment, but not because I do not agree with the sentiment or the ambition behind it. I note that the next group of amendments covers whether the CHRE should have more teeth in its investigative powers, but it strikes me that “promote” is more relevant to the purpose for which the CHRE is designed—in other words, advocacy rather than protection. The intention is not for it to be the ultimate regulator with teeth. While we have this current design of the CHRE, “promote” probably accords with the advocacy role more precisely.
Perhaps there is another debate to be had about whether we should be looking to get something more independent—the CHCs—back in the frame. That is for another day and this is not the vehicle to take matters forward.
Mr. Bradshaw: The Government agree that the council needs to be an authoritative, independent voice for patients and members of the public on the regulation of professionals. We made that clear in the White Paper “Trust, Assurance and Safety”. We believe this new objective achieves the intention set out in the White Paper. The Bill gives the CHRE a new main objective that underlines the exercise of its duties with the interests of both patients and the wider public in clauses 1 and 5. This will allow it to act as the independent voice for the patient and the public on health care professional regulatory issues. The CHRE’s new board structure will be mainly lay with no regulatory body representatives, as is the case currently, and the CHRE will have a new duty to inform and consult the public about the exercise of its functions
Clause 105 inserts the new main objective of the council in exercising its function into section 25 of the National Health Service Reform and Health Care Professions Act 2002. The current functions set out in that Act are to
“promote the interests of patients and ... practice”—
in professional regulation—
“cooperation between regulatory bodies”—
“to formulate principles relating to good professional self-regulation”.
The council’s new objective requires it to consider, when carrying out its functions, how it will promote the health, safety and well-being of patients and other members of the public, which is a stronger objective and requirement.
4.45 pm
The amendments tabled by my hon. Friend the Member for Luton, North would extend and change the council’s new main objective from promoting to protecting. Amendment No. 249 also specifies that the council’s function should be undertaken by encouraging consultation between the regulators and other regulatory agencies, and would confer a new power on the Secretary of State to define in regulations such bodies as the council should be required to consult and/or to cooperate with.
The amendments are not necessary. The council is already required to promote the health, safety and well-being of patients and other members of the public. That duty already encompasses protection of the public. I would emphasise that, in fact, the use of the term “promote” rather than “protect” confers a wider duty on the council. The term “protect” might also imply direct contact with patients and the public, which might misrepresent the function of the council, which, as the hon. Member for Eddisbury rightly said, is an advisory rather than regulatory body. We considered whether the term “protect” would be better, but were advised that, because the CHRE has an advisory role rather than a regulatory one, that would not be appropriate. In view of that, I hope that my hon. Friend will withdraw his amendment.
Kelvin Hopkins: I thank my hon. Friend for his reply. I am disappointed that he has not accepted the amendment at this stage, but I understand his argument. I hope he will recognise that there is a concern about making absolutely certain that, in the future, patients are strongly represented in relation to health care professionals. There was some suggestion that the wording was an oversight, and it is interesting that he has said there was at least some discussion about the alternative wording. I hope the spirit of the amendments will infuse the Government’s future legislation on these matters, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following: Government amendment No. 122.
Government new clause 6—Powers and duties of Council for Healthcare Regulatory Excellence.
Amendment (a), in line 7, leave out ‘investigating particular cases’ and insert
‘reviewing cases for the purposes of audit’.
Mr. O'Brien: In many ways, it is amendment (a) that I need to address, as that is our amendment to Government new clause 6, which the Minister will no doubt give his reasons for in a second. The new clause amends the National Health Service Reform and Health Care Professions Act 2002, and relates to the investigative powers of the CHRE. The White Paper “Trust, Assurance and Safety” specifies that the Government will ask the CHRE to review a sample of cases. The Government’s new clause could be interpreted as giving the CHRE a power to investigate individual cases, which is not consistent with the general purpose of audit. The amendment to new clause 6 would therefore remove any confusion about how this audit would be conducted.
There is a real concern that, as it stands, the drafting of the legislation could give rise to confusion about the purpose of a power given to the CHRE. The powers would allow the CHRE to look at individual cases as a quasi-appeals process, rather than for the purposes of identifying suggested improvements in performance. Patently, if one looks at individual cases—from which, it may be claimed, lessons might be learned—rather than at a sample of cases, the danger is that it could become a quasi-appeals process and start to be hijacked, particularly by some eagle-eyed lawyers who, no doubt, will pore over all this. Of particular concern is that it could also cause confusion with CHRE’s current powers, but not when OHPA is set up to appeal against decisions by the fitness to practise panels of each regulatory body. We need to look at both the transitional arrangements and that potential overlap. There will, of course, be ongoing cases, and we need to be very careful that we do not end up with parallel tracks, at least for a period of time, operating under different systems. One could only imagine the number of challenges there might be to that process.
There is also the further question of independence. CHRE is an organisation that is directly accountable to the Secretary of State, and it would be better if any appearance of political pressure for CHRE to look at individual cases were removed. That is a fairly comprehensive justification for the amendment, which would clear up hon. Members’ concerns.
I hope that the Minister will outline why the CHRE is limited to health care only. We touched on this, but it remains unresolved. Its role is not to oversee social care regulators. There is no independent oversight of the four social care councils, whereas the nine regulators of health professions are scrutinised by the CHRE. The social care councils regulate 110,000 registrants and there are more than 2.3 million service users in the UK. Each council has its own plans for phasing in new additions to their registers in the coming years, which on their estimates could total over 250,000 new workers. Health and social care work is an increasingly integrated process. Patients and service users should be confident in shared standards of behaviour and procedures when things go wrong.
Sandra Gidley: I wanted to raise a few general stand part comments, which are similar to those raised by the hon. Gentleman. The clause officially changes the name of the Council for the Regulation of Health Care Professionals to the Council for Healthcare Regulatory Excellence, although in practice it has had the latter name for some time. Currently, it promotes best practice and consistency of regulation among nine bodies representing medical professions: chiropractors, dentists, doctors, opticians and related people, osteopaths and the Health Professions Council, which encompasses a range of professionals, nurses, midwives and pharmacists.
The aim elsewhere in the Bill is to join up health and social care inspection, but it seems that that has been missed in this part. What is lacking is any kind of joined-up thinking between the regulation of health professionals and regulation of social care professionals. It makes sense, therefore, at some stage, to bring the General Social Care Council for England and the related devolved bodies under the umbrella.
I thought that rather than try to move an amendment at this stage, as all the others have failed, it would be useful to introduce the principle as part of the stand part debate. I hope that the Minister will acknowledge that this is a very good idea, because it cannot be right that a nurse in a nursing home and a social care worker in the same environment are regulated by two bodies which may not be united in the way they oversee their respective professions and understand best practice.
I admit that, when I met the CHRE, I questioned whether it had given any thought to this matter. It said that it had not. It later got back to me saying that it had spoken to a few people in the social care environment and the feedback had been positive. If the Minister thinks that this is a good idea, perhaps he will consider tabling an amendment on Report, which we may be minded to support.
Mr. Bradshaw: New clause 6 amends section 26(3) of the 2002 Act to clarify that the Council for Healthcare Regulatory Excellence can investigate individual cases solely for the purpose of providing general reports on the performance of regulatory bodies. Amendment No. 122 is a necessary consequential amendment, because the new clause has a UK extent.
The new clause does not confer any additional functions on the council, but means that we will avoid possible disputes about whether the council has the power to consider individual cases when making investigations and reporting on the performance of statutory functions of regulatory bodies. Amendment (a) to new clause 6 would replace the words “investigating particular cases” in proposed new section 26(4)(c) of the 2002 Act with the words:
“reviewing cases for the purposes of audit”.
I think that the hon. Gentleman’s intention in the amendment is the same as ours—to avoid extending the competences of the new body. However, we are concerned about the word “review”, because a review is usually associated with the ability of an organisation to reconsider the evidence and facts of a case with a view to confirming, amending or overturning a decision. New clause 6 has the same intention, and will make it clear that we are not giving additional functions to the council that would provide it with the power to overturn decisions, to re-examine evidence in individual cases or to reconsider the original decision. Indeed, such a power would be inconsistent with the general functions and purpose of the council.
The hon. Member for Romsey asked why we are not extending the remit of the CHRE to social care workers. I am advised that that was carefully considered during the Bill’s early stages. However, because social care workers are not generally regarded as health professionals, the regulation of whom is the subject of this discussion, the view was taken that the remit of the CHRE should not be so extended. However, I shall ask for more information on that and maybe write to her about it.
Mr. O'Brien: I am conscious that this is a clause stand part debate, but we are also talking about amendment (a). I am equally concerned that “review” carries some of those implications mentioned by the Minister—perhaps that is my legal training coming back to haunt me. I am more than happy, therefore, not to press amendment (a) to a Division. However, I also think that “investigating” implies that there will be an outcome to an investigation. It might be worth reconsidering that in order to determine whether more felicitous language could be used to achieve what we both want.
Question put and agreed to.
Clause 105 ordered to stand part of the Bill.
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