Memorandum submitted by Royal College of Nursing (H&SC 11)


Health & Social Care Bill

Briefing for Second Reading Debate - Monday 26 November 2007



With a membership of almost 400,000 registered nurses, midwives, health visitors, nursing students, health care assistants and nurse cadets, the Royal College of Nursing (RCN) is the voice of nursing across the UK and the largest professional union of nursing staff in the world. RCN members work in a variety of hospital and community settings in the NHS and the independent sector. The RCN promotes patient and nursing interests on a wide range of issues by working closely with the Government, the UK parliaments and other national and European political institutions, trade unions, professional bodies and voluntary organisations.


Part 1



Responsibility for the regulation and inspection of Health and Social Care services is currently held by the Healthcare Commission (HCC) and the Commission for Social Care Inspection (CSCI). The Bill proposes combining the regulatory, review and inspection elements of the HCC, CSCI and the Mental Health Act Commission (MHAC) into a newly created body to be called the Care Quality Commission (CQC).


The RCN is concerned that there has been very little detail published about active strategic planning for the merger particularly in relation to how the MHAC will be subsumed into the CQC. We would not wish to see patient safety compromised by any dilution of the role or effectiveness of the MHAC. The HCC has matured into its role and is now making a significant contribution to the performance management of healthcare organisations and in raising standards of patient care. The RCN does not want to see existing regulation and inspection regimes brought to a standstill whilst the new Commission becomes established. In 2009 regulation, inspection and enforcement action must continue without interruption in order to safeguard the public and there must be a seamless transition to new methodology and functions in 2010.


We understand that the CQC will run its first year carrying out existing functions of the HCC, CSCI and MHAC which will make more time available for consultation on the various functions for the new commission, and for negotiation on budgets. We would urge the Government to continue to work closely with the Royal Colleges and service user groups to ensure that the functions and methodologies that are adopted in April 2010 are fully consulted upon and absolutely what is required to improve standards and protect the public, and ensure the organisation has enough funding to deliver.


We believe that budgetary and staffing cuts at CSCI are already impinging on its ability to undertake its role effectively. Members have been raising their concerns and questioning the ability of CSCI to safeguard vulnerable people in social care. In a recent snapshot survey of CSCI Trade Union[1] members we found that:


77% do not think CSCI is in a position to fulfill its claim "We're here to make social care better for people"

35% know of services in their area that have been registered despite not meeting minimum standards


We know that the Care Quality Commission will be moving towards the Government's "lighter touch" approach to regulation with decreases in the frequency of inspections and recent changes to the inspection methodology itself. In the aforementioned Trade Unions survey 75% of members reported that they were not confident that the new inspection methodology provides a robust assessment of the risk to service users. We therefore remain concerned about whether "reducing the burden of regulation" is appropriate when it affects some of the most vulnerable people utilising health and social care services. This is even more critical at a time when the Government is encouraging a wider variety of providers to enter into the market.


Chapter 2



Overall the RCN is supportive of the new system of registration for providers, and in some instances, managers of health and social care which this Chapter outlines. We support a system of regulation which has standards of care and quality as its utmost priority and look forward to working closely with Government on the regulatory framework to ensure that all service providers and managers are working to meet the highest standards of care and service delivery.


Please find below some more detailed comments on specific clauses in this section:


5 Health or social care


Clause 5 defines "health" or "or social care" for the purpose of Part 1 of the Bill as:


(2) "Health Care" includes all forms of health care provided for individuals, whether relating to physical or mental health, and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with medical conditions"


The RCN is concerned that there is no reference to nursing care in this definition. The current definition of "medical and surgical care" may exclude nursing care and by implication leave this wholly in the domain of social care. We would suggest that the definition in the Bill be amended to read "medical, nursing or surgical care". Alternatively, we would welcome clarification from the Government that "health care" fully incorporates nursing care.


We welcome the inclusion of some "cosmetic procedures" under the definition of health care but would like more clarity from the Government about which "cosmetic procedures" will be included. In particular we would welcome closer regulation of the non-surgical cosmetic treatment industry which is currently subject to a self-regulatory scheme and we would urge the government to include non-surgical cosmetic treatments such as dermal fillers and botulinum toxin, if they are not already included in this definition.


16 Regulation of regulated activities


The RCN believes that it is important that quality and safety are the first of the listed regulatory functions. In a fully competitive market quality standards need to be integrated, across all service providers, by the new regulator.


(4) Regulations made under this section by virtue of subsection (3)(b) may in particular include provision as to the control and restraint, in appropriate cases, of persons receiving health or social care or other services in connection with the carrying on of a regulated activity.


The RCN looks forward to seeing the detail of the regulations which will be made under this section. This is an important area which requires clarity in order to protect clients and members. It is essential that all nurses working with vulnerable people should be aware of the circumstances in which control and restraint are appropriate. We look forward to working with Government on these regulations to ensure that control and restraint practices are clearly specified for all practitioners.


17 Code of practice relating to health care associated infections


This clause replaces the existing code of practice on the prevention and control of health care associated infection with a new code which will apply to regulated activities, rather than those only carried out by NHS bodies.


It is important for the regulator to treat Health Care Associated Infection (HCAI) as one of its uppermost priorities. The RCN is pleased that this clause extends the new code of practice to all regulated activities, rather than those only carried out by NHS bodies. We are pleased that the Government is extending the new Code of Practice on HCAI to all providers of Health and Social Care Services. The RCN has been calling for the existing Code of Practice to be extended to all Health and Social Care settings as part of its "Wipe It Out Campaign" for a number of years. We hope that this new code, covering all regulated activities, will help to ensure that infection control is a high priority across all settings and should cut down the risk of infections being transferred from care home settings to NHS settings.




These clauses outline the procedures for cancellation, suspension or variation in a service provider's registration should they fail to continue to meet registration standards.


The RCN will be providing more detailed information about the implications of clauses 27-29 for committee stage. However, from our initial understanding we would welcome a further stage to be introduced before cancellation of a service provider's registration which would enable the CQC to intervene to work with commissioners and service provider to identify where systems/procedures are failing and can be turned around to meet standards of regulation.


Chapter 3



43 Frequency & Period of Review


The RCN has already raised our members' concerns with the Minister that changes to existing CSCI inspection methodology are limiting CSCI's ability to identify when providers are not meeting the standards set. We are particularly concerned that proposals to reduce the number of inspections for some care homes to a 3 yearly basis, combined with the recent changes to inspection methodology, will be insufficient to protect vulnerable people in care. Currently care homes are subject to unannounced inspection at least once a year.


The new system must include a regular review of standards applied, and the inspection process used, in order to support rather than stifle innovation. We would like to see a requirement introduced for providers to report any serious untoward incidents or change in circumstance, for example change of use, registrant or personnel, which may impact on their ability to meet standards. To ensure this is effective there must be additional resources made available for the training and development required to ensure both the assessment managers and the providers have the skills and knowledge to work with this approach.


Chapter 4



This section transfers the Mental Health Act Commission's powers to the Care Quality Commission and in Wales to Welsh Ministers.


Any individual removed from society to a place of treatment is in a vulnerable position and this emphasises the need for the visiting programme of the MHAC to continue. The functions of safety and quality are core regulatory functions that should be the sole responsibility of the MHAC with this client group. The RCN has raised concerns about how the role of the MHAC will be encompassed into the CQC as there has been very little strategic detail provided thus far. This will be particularly pertinent as the 2007 Mental Health Act will require a higher level of scrutiny to ensure that new measures introduced by the legislation are being implemented appropriately. For example supervised community treatment and the use of Section 136 are all areas that will require more regulatory resource and greater scrutiny.


Chapter 6




59 Entry and inspection: supplementary

Sub-clause (8) (b) makes no reference to "nursing" records but does refer to "personal or medical" records. We would welcome the "addition of "nursing" records to the clause or clarification from Government that nursing records will be included in "medical" not "personal records.


60 Power to require documents and information etc

Sub-clause (60) (1) makes no reference to "nursing" records but does refer to "personal or medical" records. We would welcome the "addition of "nursing" records to the clause or clarification from Government that nursing records will be included in "medical" not "personal records.


69 Inquiries

Sub clause 2 outlined below enables the Secretary of State to decide when an inquiry should be held in private:


"(2) Before an inquiry is begun, the Secretary of State may give a direction that it be held in private"


The RCN is concerned that the power to decide whether an inquiry is held in private lies solely with the Secretary of State.  This does not encourage a culture of trust in which knowledge that an inquiry will be open and transparent is an integral part of the health service.  The RCN would suggest that the exceptional circumstances in which any hearing should be heard in private are set out clearly in primary legislation.  We would also want to see that the Secretary of State consults or has approval to hold an inquiry in private from the Health Service Ombudsman and the Care Quality Commission so that the public can be sure that any decision for secrecy does not appear to have a political motive.  The rules that currently affect any inquiry allow for parts where information is confidential to an individual to be held in camera but again this should be based against clear criteria set out on the face of the Bill.


Sub-clause 5 outlined below enables the Secretary of State to decide when a report of an inquiry should not be published:


"(5) The report of the person holding the inquiry is to be published, unless the Secretary of State considers that there are exceptional circumstances which make publication inappropriate."


Similarly, the RCN is concerned that this decision should not rest solely with the Secretary of State.  The RCN recommends that such circumstances need to be made explicit on the face of the Bill, and that the decision about whether the criteria are met must be with the express approval of the Chair of the Care Quality Commission, reasons for such a decision must be published.


79 Fees

We would like greater clarity about sub-clause 3 outlined below which enables the Commission to set fees in relation to certain registration functions:


(3) Provision under subsection (1) may include provision -


a) for different fees to be paid in different case

b) for different fees to be paid by persons of different descriptions

c) for the amount of the fee to be determined by the CQC in accordance with specified factors, and

d) for determining the time by which a fee is to be payable


If the provisions enable the Commission to charge smaller organisations a more reasonable registration rate than larger providers this would be very welcome. However, we would not like to see the provisions utilised to increase charges for larger organisations without a corresponding reduction in costs to smaller organisations.


We would also welcome greater clarity over the criteria to be used to determine the different level of fees to be charged. The RCN believes that any proposals for the levels of fees to be charged should subject to further consultation of relevant stakeholders. For clarity it would be helpful for the Government to confirm that it has given consideration to what extent the fees may prevent new entrants from entering the market, the extent to which fees may constrain spending on patient care and how transparent the Care Quality Commission will be required to be, in their accountability for spending fees accumulated responsibly.


80 Penalty Notices


Penalty notices raise a number of issues for the RCN and we would never want to see a situation where justice is replaced by economics or where by smaller companies are more negatively impacted upon by a penalty system than larger, multinational companies who may be more readily able to absorb any penalty costs.


In particular we would seek reassurance form the Government that penalty notices will not replace proper enforcement notices or prosecution for those who flaunt the commission's standards. We would also welcome greater clarity on where the income from penalty notices will be re-invested and the RCN would suggest for example that this money could be invested in developmental activities with providers who are failing to meet standards. We would always prefer for the CQC to offer this type of support rather than simply resorting to penalty notices. To ensure parity across all sizes of service providers we would also like consideration to be given to a sliding scale system which would link the penalty charged to the size of the organisation? This would help to address any inequality in a system whereby smaller companies could be hit quite hard for a one off misdemeanor which would not even register on the radar of larger companies.





91 The Office of the Health Professions Adjudicator


The RCN is interested to see proposals for the development of independent adjudication contained in the Bill. We will watch with interest the impact of this on the regulation of doctors and pharmacists as we believe this type of adjudication may soon be extended to other healthcare professions.


92 Fitness to Practice Panels


This clause sets out the procedures, membership and status of fitness to practice panels. The RCN is content with the fundamental role outlined for the fitness to practice panels. However, we are urging Government to ensure that the appointment and selection process for the panels are transparent, equitable and based on the appropriate skills for the job. We would look to Government to ensure that panels are appropriately trained and that the nurse member on the panel is from the same field of practice as the registrant.


98 Procedural Rules


Sub-clauses (2) (e) & (3)

We particularly welcome these clauses which enable the adjudicator to awards costs so that lawyers can seek an order to recoup costs for cases which proceed to a hearing but should not have proceeded.


104 Standard of Proof in Fitness to Practice proceedings


(1) The standard of proof applicable to any proceedings to which this subsection applies is that applicable to civil proceedings.


This section of the Bill lowers the standard of proof in fitness to practice cases from the criminal standard of "beyond reasonable doubt" to the civil standard of the "balance of probabilities". The standard of proof benchmark by which the NMC adjudicator determines has always been the criminal standard of "beyond reasonable doubt" so that NMC panel members must be sure that the facts of the case are proved.


If the standard of proof is to be lowered to the civil standard NMC panel members would be legally obliged to consider whether it was more "likely than not" that the facts of a case were proved. If this cannot be proved then a finding of unfitness to practice could not follow. Using this approach the respondent registered nurse is diminished and the ease with which a case can be proved by the NMC as prosecutor is correspondingly increased.


It can be argued that it is particularly important to retain the criminal standard in cases of alleged misconduct where many of the facts alleged are, or could be, criminal in nature. Firstly because a situation could arise whereby a registrant is acquitted in a criminal court using the criminal standard but found guilty using the same facts using the civil standard before the professional conduct tribunal. Secondly, it is important that nurses and employers have confidence in the adjudication process as removal from the register effectively ends a person's career, not just their current employment.

106 Constitution etc. of Council

We would like to see more detail about the process for appointments to the Council for Healthcare Regulatory Excellence; specifically we would welcome reassurance that the process will be open, accountable and transparent. We are particularly concerned about the loss of the Nursing and Midwifery Council seat on the panel which will lead to a further distancing from any notion of professionally led regulation.


112 Co-operation between prescribed bodies


(1) The appropriate Minister may by regulations make provision for or in connection with requiring a designated body to co-operate with any other designated body in connection with -


(a) the sharing of information which relates to the conduct or performance of any health care worker and which may show that that worker is likely to constitute a threat to the health and safety of patients

(b) the provision of information in response to request for information from any other designated body about the conduct or performance of any health care worker


The RCN is concerned that the detail of this clause remains to be worked through by the Secretary of State, with very little detail provided on the face of the Bill. We would question whether there is evidence to support the need for statutory powers to ensure co-operation between prescribed bodies.


Even if powers were to be only extended to the NHS, with social care employers required to report nurses to the NMC the RCN would continue to have strong objections. There has been no evidence to support the need for this new obligation and employers are already experienced in sharing such information on a voluntary basis.


There is a serious danger that this obligation will lead to a drop in trust between nurses and employers, and employers and Government. Likewise it could reduce the incentive for nurses to report errors or near misses if the consequence is an automatic referral to the NMC.


Furthermore, health care staff are regulated by different agencies and to different standards. For example a nurse is regulated by the NMC and will be directly affected by the Safeguarding Vulnerable Groups Act 2006 when it comes into force in 2008. Whilst an employer faces a 5000 fine for any failure to report directly to the Secretary of State any harm, or risk of harm, by a care worker.   We fear that this is another layer of regulation that demonstrates a low risk of trust in care workers and adds another layer of regulatory checks to an already overlapping and inconsistent regulatory system. The RCN would urge the Government to look closely at the intertwining regulatory systems already in operation and use the Health and Social Care Bill as an opportunity to encourage greater consistency across regulatory systems.


The NMC routinely drops the majority of referrals because there is "no case to answer" therefore there is little evidence of under-reporting and no indication that there is a gap in reporting by a nurse who then does become a threat.   The cost for the RCN and the cost for nurses would be exorbitant if every employer is required under pain of criminal conviction to refer.  It is clear that the cost of investigation will not be borne by the Secretary of State but will fall directly to nurses who will have to pay higher costs to NMC through registration fees and also to the RCN for additional cost of representation for the new cases.  





45A Infection or Contamination

Updates existing legislation regarding the spread of infection or contamination in emergency circumstances to cover modern aspects of public health protection including contamination by radiation or chemicals. The RCN welcomes Government measures to update and modernise infection and contamination procedures to meet modern day risks. We will endeavor to provide more detailed briefing on this part of the Bill ahead of committee stage.





The RCN worked closely with Government in developing the Health in Pregnancy Grant.  We are supportive of the Government's plans to take active steps to send out a positive message to women about the importance of keeping good health during pregnancy.  We are pleased that the proposals in the Bill ensure that the grant will be non-means tested and available to all pregnant women. We are particularly supportive of measures in the Bill to ensure that expectant mothers have improved access to advice on living a healthy lifestyle from healthcare professionals, as their continued health during pregnancy is important for themselves, their baby and their family. Informing women about the health in pregnancy grant will give health care professionals an ideal opportunity to inform women about other benefits that may be available to them such as the sure start maternity grant.


As the health in pregnancy grant will be working throughout the UK we would welcome consideration when drafting the regulations to ensure that the definition of "health professional" in the secondary legislation will be wide enough to take into account the differences in the delivery of health and maternity services between the four countries.


Northern Ireland

The RCN is concerned that there may be a drafting anomaly in this section. According to the Bill and corresponding explanatory notes the Health in Pregnancy Grant does not apply to Northern Ireland. However, clauses 124 and 157 (2) go on to confirm that the Grant will apply to Northern Ireland, albeit within the framework of an amendment to a different piece of legislation. We would welcome clarification on how this will move forward and if the Bill will be required to be amended to reflect that the Grant will also apply in Northern Ireland.




Amendments Relating to National Health Service


131 Indemnity schemes in connection with provision of health services


This clause extends indemnity schemes to non-NHS bodies that provide services or secure the provision of services.


The RCN welcomes the extension of the Clinical Negligence Scheme for Trusts (CNST) to all independent providers who deliver the types of care currently covered by the scheme. The new arrangements will support the increasing diversity of provision of health care and will provide a consistent and more effective approach to the handling of clinical negligence claims. In turn this will give reassurance to both patients and health care staff that there will be no inequalities in how unfortunate adverse clinical incidents will be handled, irrespective of the nature of the provider. It will also hopefully lead to the widespread implementation of consistent and robust risk management procedures, despite the variety of providers.  We would welcome the extension of the CNST to providers of primary care services generally, as the arguments in favour of such a scheme apply to providers of both secondary and primary care. Although membership of the CNST will apparently remain voluntary, we would expect commissioners of NHS care to be robust in ensuring that any insurance alternative offers the same levels of provision as the CNST.


Finally, we expect government reassurance that any extension of the CNST will be accompanied by the publication of guidance on the 'NHS Indemnity' (HSG(96)48), particularly in relation to the requirement that the provider takes full responsibility for managing and, where appropriate, settling all clinical negligence claims without the provider seeking to recover any proportion of the costs from health care professionals or others covered by the NHS indemnity, or from any private indemnities which these individuals may have.


132 Weighing and Measuring of Children: England


The RCN supports proposals that help school nurses share information with parents on the well being of their children. Any attempt to increase appropriate dialogue between parents and school nurses is a positive step forward. Primary Care Trusts and the Government need to work together to ensure that every child has access to a school nurse by making the adequate resources available. The RCN is concerned that progress to achieve the Government's target of one qualified school nurse in every secondary school and its cluster primary schools is slow, with evidence indicating that many school nursing teams have been adversely affected by the impact of NHS deficits. The National Audit Office, Health Care Commission and Audit Commission 2006 report 'Tackling Child Obesity - First Steps' indicated that Head Teachers reported their ability to address health issues such as obesity was seriously inhibited by the lack of access to a health professional within schools and other educational settings.


134 Direct Payments


Makes provision for a system of direct payments to purchase social care services directly from a Local Authority to be extended to individuals under the mental capacity act. Where individuals are deemed to lack the capacity to consent to direct payments a "suitable person" can be nominated to receive the payment on their behalf.


The RCN welcomes the extension of direct payments to individuals under the Mental Capacity Act however we would like to see clear safeguards put in place to ensure that these vulnerable individuals cannot be exploited. It is imperative that clear guidelines are issued to ensure that any nominated "suitable person" will be acting in the best interest of the individual lacking capacity to commit to direct payments.


We recognise that there has been a lot learning around direct payments and individually held budgets. However, we do need to be clear that the department of health have learnt the lessons from social care and the individually held budgets pilot sites. We believe that there are not health and social care professionals in the workforce with case management skills required to extend this programme. We are seeking from the Government about what plans will be in place to build capacity within the workforce to manage the roll out of this scheme.


137 Power of Secretary of State to give financial assistance


The RCN is supportive of the principle that the Secretary of State should intervene financially to ensure continuity of services where providers exit the market. However, we would welcome much greater detail about the failure regime for Foundation Trusts. It would be helpful to have clear criteria for circumstances where the intervention of the Secretary of State would be desirable. For example financial assistance to build capacity, develop staff for a particular innovation in service delivery, or in order to improve a facility where it is not meeting the standards required by the Care Quality Commission.


The RCN would welcome confirmation that the Government is content that the kind of assistance they have outlined in the Bill will meet EU legislation requirements around what is and what is not 'state aid'.


January 2008

[1] June 2007, Joint Union Survey (RCN, UNISON, Unite & Prospect) of CSCI members, over 350 members responded.