Clause
112
Co-operation
between prescribed
bodies
Sandra
Gidley:
I beg to move amendment No. 267, in
clause 112, page 60, line 25, leave
out may show and insert
shows.
The
clause has the generally laudable aim of ensuring that there is a
mechanism for sharing information about health workers. As a general
principle, that is to be welcomed. There have been occasions where the
system has failed in the past because it has not joined up and earlier,
I cited an example of a nurse in a nursing home who was able to
practise for some time before her regulatory body caught up with
her.
There is a concern about the
current drafting. The aim of the amendment is to ensure that the
sharing of any information that relates to the conduct or performance
of a health worker could happen only if it actually shows that the
worker is likely to constitute a threat to the health and safety of
patients. The current wording in the Bill says may, and
that seems to encompass a range of levels of proof. It would only
potentially show that a worker may be a threat, and it is not clear how
robust that evidence has to be.
The regulations will require
NHS trusts and other bodies to provide and share information about
health care workers in circumstances where a person may constitute a
threat to the health and safety of patients. The BMA identified a
potential problem with the clause from an employment law perspective.
Clause 112(1)(a) refers to information that
may show whether a worker is
likely to constitute a threat to the health and safety of
patients.
Legal advice
received by the BMA shows that if an employer were to pass on an
unproven or damaging piece of information without the employees
knowledge, it could be the basis of a claim that the employer had
breached an implied term of trust and confidence in his or her
employment contract. The use of unproven information does not indicate
what level of investigation there has to have been. Obviously any
comments that raise concerns are potentially damaging to an employee's
reputation, so the matter would need to be carefully looked into. There
is a case for saying that information should be shared only where the
employer can demonstrate cause. In effect, that means that there would
be a full and proper investigation and that the employee would
be informed of the allegations.
It would be helpful to know how
and when those powers will be used. Can the Minister
clarify the procedures for the sharing of such information, including
the need to inform the subject of the investigation at the earliest
possible stage about the allegations that are being investigated? What
assurances can the Minister give that the information shared would be
kept in strict confidence, and to whom will that information
be restricted?
Page
61, line 4 defines a designated body. Will the Minister
clarify what other bodies he intends to prescribe for the purpose of
that measure? It is right to say that protecting patients is vital, but
the human rights of the health professional also need to be taken into
account. At this stage, can the Minister outline the content of the
secondary legislation and guidance?
I have a couple of further
questions. What are the appropriate circumstances in which unproven
information should be shared? If the intention is that the powers will
be used only in cases where there is evidence of a significant risk to
patient safety and where appropriate investigations are under way, can
the Minister give examples of cases where information sharing would be
an integral part of the investigation? What guidance will PCTs be given
on considering all relevant factors, including assessing the degree of
urgency and potential threats to patient safety, and examining the
contribution that information from one organisation could make to the
investigation before making the decision to share the information? Will
the Minister clarify the circumstances in which it may be
necessary to share information that is unproven at the time the
information is shared? What onus will be on the organisation receiving
the information to use the same confidentiality safeguards that it
would if it had received the allegation directly from a member of the
public?
There is
general happiness about the overall intent of the Bill, but the use of
the word may has given rise to some significant
concerns, on which I seek the Minister's
reassurance.
Mr.
Bradshaw:
The amendment would prevent organisations from
sharing informationeven where proventhat on its own may
not be enough to demonstrate a threat to patient safety. However, when
such information is put together with other information a pattern of
behaviour may be revealed that could put patients at risk. For example,
the settlement of a clinical negligence claim does not in itself show
that the worker was a threat to patient safety, but repeated claims may
show that there is likely to be a threat to
patients.
6.15
pm
A common
conclusion of recent inquiries, including the Shipman, Ayling and
Kerr/Haslam inquiries, was that health care organisations failed, both
singly and collectively, to join up information that was
available to them. We are concerned that the hon. Ladys
amendment would limit their ability to do so. I will come on to the
safeguards that she sought in a
moment.
I absolutely
understand and sympathise with the need to protect health care workers
from unfounded allegations and we will therefore ensure that any
regulations made under the clause are accompanied by
robust guidance, which sets out the necessary
safeguards regarding the way in which the shared information is stored
and used in the receiving organisation. The basic principles
should be that any uncorroborated information be held in strict
confidence by the receiving organisation, and that health care workers
be told, at the earliest possible stage, of the accusations against
them and of the proposed way in which they will be
investigated.
In
response to the hon. Ladys specific questions, information on
unproven allegations will be shared only under strict conditions of
confidentiality and on a need to know basis. There is no question of
taking disciplinary action against any professional without a full
investigation, in which the truth of such allegations can be rigorously
tested through a fair
process.
Sandra
Gidley:
Information could be passed on to another body and
later not be proven. It is not clear what means there is of withdrawing
such information so that a slur does not unnecessarily stay on a health
professionals
record.
Mr.
Bradshaw:
That is exactly the sort of thing we would need
to make plain in the secondary legislation. Soft information should be
kept subject to strict controls and confidentiality so as not to harm
the reputation of health professionals. Where on the basis of the
information available a health care organisation
decides that there is a need to investigate further, the professional
concerned must be told of the allegation and given an opportunity to
give his or her side of the
story.
The procedures
will be set out, as I already said, in regulations. Guidance will be
based on the advice of an expert group that will include the BMA, and
that legislation will also be subject to full public consultation. We
expect to carry that out later in the year. It is our intention that
the guidance include the need to inform the subject of the
investigation at the earliest possible
stage.
Finally, the
hon. Lady sought an example of where unproven information may be
shared. One example is where a doctor is employed by two or
more organisations and an investigation into a serious allegation has
been initiated by one of them. In deciding whether to share that
information with a second organisation, the organisation will need to
consider the central issues of the nature and strength of the
allegation, the degree of urgency and the vulnerability of those to be
protected. I hope that on the basis of those reassurances the hon. Lady
will feel able to withdraw her
amendment.
Sandra
Gidley:
I thank the Minister. There is always a problem
when dealing with legislation whose detail is to come after, and when
there are relatively few opportunities for parliamentarians to change
the fine detail of the final product. I am happy to withdraw the
amendment at this stage but I will reflect further and look closely at
the Ministers words to check that all my concerns have been
allayed. I am not convinced that they have been and it is possible that
we may wish to return to the point on Third
Reading.
I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
112 ordered to stand part of the
Bill.
Clause
113 ordered to stand part of the
Bill
.
Clause
114
Regulation
of social care
workers
Mr.
O'Brien
:
I beg to move amendment No. 56, in
clause 114, page 62, line 18, leave
out subsection
(4).
This is a probing
amendment to ascertain the Governments plans under subsection
(4) for the regulation of social care workers who are not currently
social care workers. The simple question is, what groups does the
Minister have in mind? The Minister confirmed during the debate on
clause 5 that it is not the Governments
intention
that the
domestic or private arrangements that they outlined should fall under
the requirement for regulation.[Official
Report, Health and Social Care Public Bill Committee, 15 January
2008; c.
226.]
Regulations
under this provision are made by statutory instrument under the
affirmative procedure, in recognition of the fact that in granting the
Secretary of State the power to repeal or amend any provision other
than section 55 of the Care Standards Act 2000,
this is a Henry VIII clauseour old friend whom we discussed
earlier. I shall refrain from reading out the remarkably humorous
contribution I made at the
time.
Our memorandum
of information
notes:
It has
hitherto not proved possible to make amendments as promptly as would be
desirable in that changes require an appropriate legislative vehicle
and sufficient Parliamentary
time.
I felt quite
irritated and irked by that. It is not a strong argument. For a
Government it is a very weak argument, because not only is control of
both elements wholly within their power, there has not been one
parliamentary year since Labour came to office when an Act meddling
with the NHS or social care sector has not gone through the House, any
number of which might have contained the proposed provision. Committee
members need only look at part 5 of the Bill for
examples.
It
remains a moot question, therefore, whether the Committee should vote
away even more of Parliaments democratic role solely because
either the Government are not on top of their policy making in advance
of their proposed legislative programme or they have some problem with
their parliamentary timetabling, such that we need this extraordinary
catch-all definition of social care workers who are not currently
social care workers. I look forward to the Ministers
response.
Angela
Browning:
I support the amendment. It brings us back to
something about which the Minister has given us verbal reassurance
throughout the course of the Bill, but subsection (4)(c) seems to catch
all the people we have talked about. I am particularly concerned about
the flexibility, which I have already said I support, of direct
payments. Many people are employed directly by people who need a
package of social care paid for through direct payments from public
funds. We have just started to get a breakthrough in that flexible
arrangement for people who are befrienders, such as those helping
people with mental health problems or with autistic spectrum disorders,
who need a package of care that is not the sort we have historically
identified with physical disability or old age, but which makes a huge
difference to their lives whereby their needs are recognised and they
can at last start to take their place in society and do the sort of
normal things that the rest of us enjoy but from which they are
precluded.
Let us take
as an example people who need a care package so that an age-appropriate
or gender-appropriate person can accompany them sociallyperhaps
to go to the pub with them once a week. That may sound rather minuscule
and trivial, but it makes a difference and I cannot see how such
befrienders and people officially employed with public money will not
fall foul of subsection (4)(c). They are just the sort of people who
will be caught by that catch-all. Once they are subject to a lot of
regulation they will be discouraged from doing those jobs and making
themselves available one or two evenings a week. This is important, so
I must ask the Minister to address what is on the face of the Bill, as
it seems to fly in the face of some of his earlier
reassurances.
Mr.
Bradshaw:
The clause will only enable regulation of
activities carried on by people who are not social care workers within
section 55 of the Care Standards
Act 2000 if the activities are carried on in connection with the
activities of social care workers. Provision in subsection (4)(b) and
(c) measures the equivalent provision that we have already discussed
under schedule 3 in relation to the Health Act 1999, which sets out
what regulation in relation to a health care professional may
include.
In answer
to the hon. Members question, it may include other groups who
will need the flexibility to register in future. We have already
announced that the first new group to be registered will be staff
working in domiciliary care. The Government have also accepted GSCC
advice on further groups, which include residential care workers. Those
two groups cover staff in Commission for Social Care Inspection
registered childrens care homes, residential family centres,
care homes for older people, care homes for adults, domiciliary care
agencies that provide personal care in peoples homes, fostering
agencies, voluntary adoption agencies and so on. They are not the sort
of individual contractual arrangements we discussed earlier and which
the hon. Lady has just raised
again.
That
is why we are seeking the flexibility that the clause would give us.
The difficulty we have with the hon. Member for Eddisburys
amendmentnotwithstanding his concerns, which I share, that we
would not want the flexibility to be limitlessis that it would
create uncertainty for the groups I have just referred to and may mean
that those people or activities would not be brought within the
regulatory framework or their regulation modified without primary
legislation. I do not think that would be a sensible restriction so I
hope he will feel able to withdraw his
amendment.
Mr.
O'Brien:
I have listened carefully. Although it has
unquestionably been helpful for the Minister to say that he has in
mind, for instance, staff working in domiciliary care, residential care
workers and a number of others, it is either appropriate to define
them, which would be possible, or, given that so much is in
regulations, it could be done by regulation. What I do not like is that
the provision is so general and unspecific that it could possibly
capture more.
This is
not a vote against the Government as a matter of principle but a vote
against on the basis that we have made a sensible point that has not
yet been fully addressed. I encourage the Minister to think afresh with
his officials as they look at the next stages of the Bill. On a
feet-to-the-fire basis, I seek to divide the
Committee.
Question
put, That the amendment be
made:
The
Committee divided: Ayes 4, Noes
10.
Division
No.
12
]
Question
accordingly negatived.
Clause 114
ordered to
stand part of the
Bill.
Schedule
9
agreed
to.
Clause 115
ordered to stand part of the
Bill.
|