Draft Nursing and Midwifery (Amendment) Order 2014
The Committee consisted of the following Members:
† Alexander, Heidi (Lewisham East) (Lab)
† Blunt, Crispin (Reigate) (Con)
† Burstow, Paul (Sutton and Cheam) (LD)
† Cooper, Rosie (West Lancashire) (Lab)
Cunningham, Sir Tony (Workington) (Lab)
† Doyle-Price, Jackie (Thurrock) (Con)
† Gwynne, Andrew (Denton and Reddish) (Lab)
† Horwood, Martin (Cheltenham) (LD)
† Jones, Andrew (Harrogate and Knaresborough) (Con)
† Lefroy, Jeremy (Stafford) (Con)
† Love, Mr Andrew (Edmonton) (Lab/Co-op)
† McDonagh, Siobhain (Mitcham and Morden) (Lab)
† Penrose, John (Lord Commissioner of Her Majesty's Treasury)
† Poulter, Dr Daniel (Parliamentary Under-Secretary of State for Health)
† Raynsford, Mr Nick (Greenwich and Woolwich) (Lab)
Shannon, Jim (Strangford) (DUP)
† Tredinnick, David (Bosworth) (Con)
† Wheeler, Heather (South Derbyshire) (Con)
John-Paul Flaherty, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Monday 24 November 2014
[Mr Dai Havard in the Chair]
Draft Nursing and Midwifery (Amendment) Order 2014
4.30 pm
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter): I beg to move,
That the Committee has considered the draft Nursing and Midwifery (Amendment) Order 2014.
It is a pleasure to serve under your chairmanship for the second or perhaps the third time, Mr Havard. The Government have identified improvements to the legislation under which the Nursing and Midwifery Council operates that will improve public protection and increase public confidence in the council. We therefore carried out a UK-wide consultation on proposed changes to the Nursing and Midwifery Order 2001, which is the council’s governing legislative framework, with the majority of respondents supporting the amendments.
The draft order will enable the Nursing and Midwifery Council to appoint case examiners, who will be given powers currently exercised by the investigating committee to consider allegations of impairment of fitness to practise, following an initial screening that has deemed an investigation to be appropriate. That is nothing new or radical in health care regulation: the same process is used by the General Medical Council case examiners.
Two case examiners, one lay and one Nursing and Midwifery Council registrant, will consider an allegation following the procedure set out in the Nursing and Midwifery Council fitness to practise rules amendments, which are being developed by the Nursing and Midwifery Council in parallel with this order. The case examiners will then agree their decision on whether the registrant has a case to answer and whether the allegation should therefore be considered by the health committee or by the conduct and competence committee. If case examiners fail to agree on whether there is a case to answer, the allegation will be referred to the investigating committee for determination. The introduction of case examiners should lead to the swifter resolution of complaints, thereby improving public protection and the efficiency of the council’s fitness to practise processes, as well as reducing the stress to registrants caused by lengthy investigations.
The draft order also introduces a power for the Nursing and Midwifery Council to review no case to answer decisions made at the end of the investigation stage in fitness to practise cases and to make rules in connection with the carrying out of such a review. That will bring the Nursing and Midwifery Council’s powers in line with those of the General Medical Council. The draft order also introduces a power to allow the Nursing and Midwifery Council to delegate that function to the registrar, who is the chief executive. The amendments to the fitness to practise rules, which are being developed by the Nursing and Midwifery Council, will provide that the registrar may review a no case to answer decision if new evidence comes to light that has a
material impact on the original decision or if it is considered that the decision may be materially flawed, and in both cases if such a review is in the public interest. Save for exceptional circumstances, a review of a no case to answer decision cannot be commenced more than one year after the date of a decision.The draft order also revises requirements for the composition of the registration appeal panel by removing the requirement for a Nursing and Midwifery Council member to chair panel, which is intended to establish a clear separation of duties between the council’s operational and governance functions to avoid suggestions of perceived bias and conflict of interest. A registered medical practitioner will be required on the panel in cases where the health of the person bringing the appeal is an issue. It is intended that medical advice will be provided by independent medical witnesses and reports to ensure that the panel remains detached from that part of the process, thereby making the process more robust and transparent. That will also ensure more consistency between registration appeals and fitness to practise appeals.
The draft order also clarifies existing legislation under which the Nursing and Midwifery Council’s health committee and conduct and competence committee have the power to make a strike-off order in a health or lack of competence case upon review of a final suspension order or conditions of practice order, provided that the registrant has been the subject of such a final order for at least two years. That is not a new power, but it is intended to provide clarification of existing legislation following the judgment in Okeke v. Nursing and Midwifery Council, although, to be clear, that case was decided on a different point. The judge’s comments in obiter dicta cast some doubt about the interpretation of existing legislation. The proposed amendment will provide clarity and allow the Nursing and Midwifery Council to use the striking-off power in appropriate cases, as it has in the past.
The reason for strike-off in any fitness to practise case is that a practice committee, after considering all the available evidence, has found that a practitioner’s fitness to practise is impaired and that they will therefore put patients’ safety at risk if they continue to practise. The Government consider it a legitimate aim to protect patients and the public by ensuring that those whose fitness to practise is impaired cannot continue to practise. Where new evidence relating to a strike-off order becomes available, the order can be reviewed and a practitioner can be reinstated to the register. In a health case, if a person’s health improves and they wish to start practising, there is provision in the legislation for them to apply for a review of the order and restoration to the register.
The draft order will introduce a power for the Nursing and Midwifery Council to disclose to a third party certain information relating to a person’s indemnity arrangements. That will enable the Nursing and Midwifery Council to verify the information it receives, ensure that indemnity arrangements are in place and provide sufficient cover in relation to the liabilities that may be incurred by a practising nurse or midwife registrant.
The draft order gives the investigating committee a new power to make an interim order after it has referred a case to the health committee or conduct and competence committee, if that committee has not begun its consideration of the case. At present, once the investigating committee
refers a case, the power to make an interim order only rests with the conduct and competence committee or health committee. If new information is received that suggests that an interim order is necessary for the protection of the public after a case has been referred to another practice committee, the investigating committee will have the power to make an interim order before the committee starts to consider it.The introduction of case examiners and the power to review no case to answer decisions made at the end of the investigation stage in fitness to practise cases will bring the Nursing and Midwifery Council in line with the General Medical Council. The implementation of those recommendations requires a section 60 order under the Health Act 1999 to amend the legislation governing the Nursing and Midwifery Council.
4.37 pm
Andrew Gwynne (Denton and Reddish) (Lab): It is a pleasure to serve under your chairmanship, Mr Havard. The Opposition think that the changes are broadly welcome and I will not detain the Committee long.
There has long been a need to look at the fitness to practise disciplinary processes. We hope that the adjustments will result in a smaller backlog and improved patient safety, which is paramount. The important issues discussed in the Francis report highlighted some of the problems in the fitness to practise process—for example, it was suggested that the length and complexity of NMC procedures might deter employers from referring as many cases as they should, resulting in sustained patterns of poor care.
The provisions of the draft order should streamline NMC fitness to practise processes and bring them into line with those of other major medical disciplinary bodies. The introduction of case examiners is a case in point, as the Minister said. That should develop the NMC’s capacity to kick-start disciplinary procedures, which will improve public confidence in the process. Never again should the public have reason to believe that their concerns are being ignored. Another welcome measure is the introduction of the ability of the investigating committee to make interim orders pertaining to a nurse’s right to practise while the procedure is ongoing.
One question I have for the Minister is: why were the measures not included in the Gracious Speech, as part of the draft Bill produced by the Law Commission following the Command Paper in 2011? That draft Bill was supposed to cover the structure of regulatory bodies, registration, education and fitness to practise, and the measures would have fitted neatly into that process. The most fundamental proposal was for regulators to have the autonomy to make their own rules, rather than the Department of Health having to come to us with an order such as this one. The protracted process of adjusting the rules causes regulators the most problems and tends to result in years of delay in modernising and improving their processes and procedures. These relatively minor changes are now being included in an Order in Council more than three years since the publication of that Command Paper. That brings me back to my wider point about the need for the draft Bill that was lost in the ether not long before the Queen’s Speech.
Mr Francis was quite clear in recommendations 222 to 235 about the need to reform the GMC’s and NMC’s fitness to practise policies and other functions, and
regulators’ ability to work more closely together. The Government were also quite clear in their response to the recommendations, saying:“A number of measures are being put in place to ensure the regulatory framework for professionals is strengthened and made more responsive in the light of the Inquiry’s report.”
The Prime Minister also referred to “sweeping away” the NMC’s decision-making processes. The draft Bill is an essential component of the implementation of the Francis recommendations, and without that primary legislation some of the more profound changes recommended by Francis simply cannot take place. Perhaps the words of Jackie Smith, the chief executive and registrar of the Nursing and Midwifery Council, are pertinent here. She said:
“I am hugely disappointed that the Government has not included this revolutionary Bill in its final session of Parliament. Both the NMC and the public it protects now continue to be left, indefinitely, with a framework that does not best serve to protect the public.”
To be fair, the order goes part of the way towards allaying some of those concerns.
I have a couple of other questions for the Minister. One is about the power to compel organisations to disclose an individual’s indemnity arrangements. Such arrangements are now compulsory, following the making of the Health Care and Associated Professions (Indemnity Arrangements) Order 2014, which I saw go through the House. Why is that power reserved for the NMC alone? It seems pertinent for it to be considered for the GMC as well. Also, has the Minister considered any extra costs that may appear as a result of the order? There are some small concerns that the new power to review no case to answer decisions could place an additional administrative burden on organisations in reopening case files, liaising with registrants and responding to the case review. I agree that that burden is outweighed by the need to protect patients and ensure the consistency of professional standards, but I just wanted to know whether the Minister had considered the point.
On the whole, the Opposition welcome the measures. We will support them today, but I shall be grateful if the Minister responds to the points I have made.
4.42 pm
Jeremy Lefroy (Stafford) (Con): It is a pleasure to serve under your chairmanship, Mr Havard.
I very much welcome the draft order. As the hon. Member for Denton and Reddish said, it is a response to the Francis report on the Mid Staffordshire NHS foundation trust in my constituency, and it is an extremely welcome measure.
I have one question, which is really the same as the hon. Gentleman’s: when is the Law Commission’s draft Bill likely to be brought to Parliament? Of course, part of it is included in my private Member’s Bill, the Health and Social Care (Safety and Quality) Bill, which received its Second Reading on 7 November. It provides for an overarching duty to protect the public, and two other important duties for all the regulatory bodies, with the exception of the GMC, which is provided for separately, but including the Nursing and Midwifery Council. However, the other points brought up by the Law Commission’s extremely important draft Bill are not included, for reasons that the Minister knows. Is the draft Bill likely to be introduced in the near future?
4.44 pm
David Tredinnick (Bosworth) (Con): Like my hon. Friend the Member for Stafford, I welcome the measure. The matter it deals with was of concern to the Select Committee on Health, on which I have the honour to serve and which considered in some depth Francis and the whole sorry saga of Mid Staffs.
Any measure that improves consistency and reduces the time taken to reach decisions is of course welcome, but can the Minister confirm that the proposed measure came about because of the decision in 2012 of the Professional Standards Authority for Health and Social Care to review the fitness to practise arrangements of the Nursing and Midwifery Council? Can he also confirm that one of the key public concerns, which has driven the decision to review the NMC, has been about overseas staff coming to the UK and not meeting high standards? We can gloss over that, but lying behind some of it is a real concern that codes of practice that, to say it in the gentlest way, are different from ours, really need to be checked out more thoroughly. Under the new arrangements that will take place.
The hon. Member for Denton and Reddish touched on my final question. As with all regulatory bodies, changes tend to increase costs, and that is often resented by those who are regulated. Can he give some assurances that costs will not increase dramatically in this case?
4.46 pm
Dr Poulter: I will do my best to address some of the comments and concerns that have been raised.
I welcome the shadow Minister’s support for the draft order, which is undoubtedly a welcome measure to protect patients and the public. As my hon. Friend the Member for Bosworth outlined, there were concerns about the speed of the fitness to practise proceedings undertaken by the NMC. That had been flagged up by the PSA on a number of occasions. We welcome the fact that, under the new and reinvigorated leadership of the NMC, those issues are at last being addressed. The draft order is part ensuring that, rather than using a complicated committee system to deal with fitness to practise cases, there are dedicated case examiners, who will bring greater consistency for registrants in the decisions being made. That is important for the public perception of the role of the regulator, but it is also important to have greater consistency for those people who might have to be investigated. My hon. Friend was quite right to point that out.
In introducing the order, the Government we are trying to address as rapidly as possible some of the issues raised by the Law Commission, the Francis report and the Professional Standards Authority in reports and recommendations made over the past few years. The process of putting together a Bill dealing with all the professional regulators is a complex matter, because it touches on many pieces of legislation. To ensure that we get that Bill absolutely right and we get the right framework in place, we are continuing to work and engage with all the regulators that look after all the health care professionals. I understand why there may be some disappointment about the speed of our progress, but we have introduced measures on language checks and the draft order before us today to improve the protection available to the public in areas where serious shortcomings have shown up in the past.
Those shortcomings were touched upon by my hon. Friend the Member for Bosworth. I disagree that the measure is specifically about tackling the lack of familiarity with the health care system in the UK and overseas registrants; it deals more with ensuring that fitness to practise cases are answered in a timely manner. However, the NMC has taken on board the potential need to have a test similar to the one the GMC has—the Professional and Linguistic Assessments Board test for overseas doctors—for new registrants from overseas. Indeed, at the moment we are shortly to consider responses to a consultation on language checking for health care professionals other than doctors, for whom we have already introduced language checks. Depending on the outcome, we hope to proceed with those additional language checks for other health care professionals in the new year, but we need to see what the consultation says and we cannot pre-empt those responses.
A couple of other issues were raised. The shadow Minister asked why only the NMC has been given the power to check the indemnity status of its registrants. It is important to state that not all regulators require or want that power; however, the NMC has no other power to use in that regard. We have written to all other regulators to ask what changes, if any, are required to their rules now that the Health Care and Associated Professions (Indemnity Arrangements) Order 2014 has come into force. We are taking that work forward, pending discussions.
We are moving away from a committee-based structure, which is not good either for the consistency of decision making or for full transparency for registrants or the public, towards a case examiner system. I believe the NMC intends to have eight examiners, who will work in pairs; as I outlined earlier, in each pair one person will be a lay member and the other a registrant. Not only will that bring greater consistency, but clearly they will be able to operate at a much greater pace than is possible when calling in a small group as part of a committee-type structure. That will bring improvements in the quality of decision making and will streamline the process, and so should reduce cost rather than increase it. It will be a better, more streamlined and more transparent process. The GMC has found in its work that the case examiner system works both to protect patients and the public and to speed up the process.
A quicker process helps to reduce cost, which is an additional and important benefit. I am sure all of us would hope that when the costs of a health care regulator are reduced the benefit is passed on to the registrants. There is a record of other health care regulators taking their cost savings into account when setting future registration fees. I am sure the NMC will have regard to that.
I hope that I have addressed all the Committee’s concerns, and commend the order to the Committee.
The Chair: Before I put the Question, I want to thank the Committee. I let the discussion range a little beyond the technical, so as to put the order into a proper context, and I thank Members for not abusing that privilege. That was helpful, so thank you very much.