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.
It is a
wholly appropriate and proper debate for hon. Members to advance,
because we still have an outstanding issue about patient and public
involvement and about having sufficient independence to move from
pure advocacy to a hand-holding job, particularly for the vulnerable,
that helps them to chart their way through a difficult NHS access or
complaints procedure. Those vulnerable people often continue to have
the greatest need of that. They are therefore reluctant to get offside
of the very body about which they have concerns. 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 ... public...best
practice”—
in
professional
regulation—
“cooperation
between regulatory
bodies”—
and
“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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