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Earl Howe: I wish to add my support for the amendment. The noble Lord, Lord Peston, is right to make the point about the need to show net benefits if there is to be protection of title. Presently, there is scope for considerable confusion in the minds of the general public, hence a risk to patients arising from the use of certain professional titles by unqualified individuals. That usage is perfectly legal. "Registered nurse" is a protected title. "Nurse" is not; "psychologist" is not; nor is "podiatrist". And "physiotherapist" is not protected. The Charted Society of Physiotherapy has pointed out to me that the common international title for the discipline, "physical therapist", is likewise unprotected. That represents a loophole in the law. Unless the ability exists to regulate the use of specific titles, vulnerable people will continue to be misled into thinking that they are being looked after by qualified professionals. I hope that the Minister will be receptive to the point.
Baroness McFarlane of Llandaff: I, too, support the amendment. There is considerable confusion in the mind of the public, particularly about the title "nurse". Very often healthcare assistants have the title "nurse" on their name badges. I have met members of the general public who are very confused about who is nursing them. They describe to me people in a chequer uniform and ask: "Are they registered nurses, or not?". For the general public it is very confusing.
Baroness Hayman: I am tempted to tell the noble Baroness of the male doctor who recently raised with me the issue of confusion in patients' minds. He said, "It was all so much easier in the past when all the men were doctors and all the women were nurses." Perhaps that is a road down which I should not be tempted.
I agree with the importance that has been placed on the issue of the protection of the public which, after all, is the reason behind all that we are discussing with regard to self-regulation. Perhaps I may reassure my noble friend Lord Peston by saying that the reason why the Government wish to support and strengthen self-regulation is that we believe it is the most effective way of enhancing public protection, and not simply as an end in itself, if I can put it that way.
I can certainly understand the frustration, particularly of the professions supplementary to medicine, as the Act of 1960 does not protect specific professional titles or provide protection of function, which is another way of ensuring the protection that the public would wish. It is three years since a review of the Act recommended that that problem be addressed. That is one of the reasons for the impatience in getting on with this Bill and the order-making power.
We believe that the protection of common title or function is fundamental to the protection of patients. I wish to reassure the Committee that the Government fully intend to ensure that appropriate provision is made in the replacement legislation in this regard for each of the professions concerned. As has been pointed out, individual professions have particular interest in it and particular interest in what is the appropriate term, whether it is both "chiropodist" and "podiatrist", both "physiotherapist" and "physical therapist". Once you start protecting three or four different titles for the same professional group, there is a danger that public clarity and understanding will not be enhanced. We must approach this on a sensible basis. We shall consult the professions on the proposals in due course.
Again, I want to stress the way in which the order-making power in Clause 47 and the words,
- "privileges of members admitted to practice",
On the issue of exactly which title is to be protected, I say to the noble Lord, Lord Clement-Jones, that we would certainly be looking to protect the common title for the professions allied to medicine. With regard to nurses, there has always been a difficulty in the past with the term "nurse", as the noble Baroness, Lady McFarlane, will be aware. If you protect the common title of "nurse", how does one deal with nursery nurses and veterinary nurses? I am not sure that we have found a perfect answer to that one. The issue is most important in the areas of the professions allied to medicine and there the common title will be the one that we shall be seeking to protect.
Lord Clement-Jones: I thank the Minister for that reply. In response to the noble Lord, Lord Peston, as a member of one of the most over-protected professions--I am a solicitor--I am conscious of the need to be aware that if there is protection it must be in the public interest. I believe in the case that we have made today. I am pleased by the Minister's reply, particularly as it applies
to the professions allied to medicine. Her answer was quite specific about common title and not just requiring registration in every case.I hope that the protection of the title "nurse" can be looked at further, perhaps in the context of the healthcare assistant agenda. It seems to me that the ideal time to regulate on the title "nurse" is when the occupation of healthcare assistant is regulated. That might be a useful break-point when the use of the word "nurse" could be clearly defined as someone belonging to the nursing profession. As a staging post, I welcome the Minister's comments and beg leave to withdraw the amendment.
Amendment, by leave, withdraw.
[Amendments Nos. 200 and 201 not moved.]
5 p.m.
Schedule 3 [Regulation of health care and associated professions]:
Lord Walton of Detchant moved Amendment No. 202:
The noble Lord said: In speaking to Amendment No. 202, tabled in my name and the names of my noble friend Lord Kilpatrick of Kincraig, the noble Baroness, Lady McFarlane of Llandaff, and the noble Baroness, Lady Emerton, I also wish to speak to Amendments Nos. 203, 204, 206 to 211, 213, 215, 216 and 217 as they are all closely interlinked. I shall try to explain that interlinking in a moment.
In speaking to these matters I am not just concerned with the interests of the General Medical Council but with the interests of all the eight self-regulatory bodies listed in the Bill, including the General Dental Council, the General Optical Council and others. Each of them is concerned about the present provisions of the Bill. If one were to apply the principle of reductio ad absurdam, it would be possible under the Bill, as drafted, to replace the present self-regulatory body by a small, government-appointed professional body. It would be possible to replace the GMC by a professional body of, say, four chief medical officers with no lay members. That is clearly a ridiculous idea which no one would contemplate. Everyone will be greatly reassured by the comments of the Minister earlier today.
We are concerned that the self-regulatory bodies have striven over the years to move towards the greater protection of the public, an issue to which the noble Lord, Lord Peston, referred. The noble and learned Lord, Lord Hailsham, has described professional self-regulation as one of the glories of a civilised society which nevertheless must take full account of lay opinion and lay concerns.
I became a member of the General Medical Council in 1971 and subsequently its president from 1982 to 1989. During that time the GMC moved rapidly towards bringing about a number of changes in its powers within the legislation, as it then allowed, in the greater interest and protection of the public. However, under the
Even in my day, we began to recognise the crucial importance of the fact that the council had no powers over the issue of professional performance. It could deal effectively with doctors who were guilty of serious professional misconduct; it could deal effectively with doctors who were sick; but it had no powers to deal with doctors whose performance fell below a satisfactory level. In those days we began to look towards government to see if legislation could be introduced to deal with that particular issue. It took several years-- I know that my noble friend Lord Kilpatrick will say more about this--before primary legislation under the Medical (Professional Performance) Act 1995 was introduced.
As the Committee will be aware and as the noble Baroness mentioned, quite recently the whole question of revalidation of professional performance of doctors in all disciplines, in all specialties and in all grades of work came under the ambit of the GMC. That will be a regular procedure together with the important point of the protection of the public, not least because of some concerns arising from recent notable cases that received a great deal of attention in the media.
The primary purpose of these amendments is to ensure that the order-making power under the Bill to modify regulation of the health professions is properly limited. As I say, the present regulatory bodies are all anxious to continue to develop effectively their ability to protect patients and to serve the public as well as they can within their power. Several of them had been waiting for amendments to the legislation concerning their powers for many years. To take but one example, the disciplinary legislation applying to pharmacists has been unchanged since 1954. The regulatory bodies and the professions recognise the substantial and arduous responsibilities conferred upon them. For many members of the public the quality of health services and of professional practice is among the most important of all issues affecting them. It is therefore of great importance that any proposal to change the responsibilities of bodies responsible for regulatory functions should be subject to the detailed scrutiny and debate of primary legislation. Fundamental change should not be implemented by secondary legislation.
The amendments which we have tabled ensure that the core functions of the present regulatory bodies may not be given to another body by an order made under Clause 47 of the Bill. Primary legislation would continue to be required, although such legislation could be very simple. Detailed provisions could be dealt with by order. We believe that this strikes the right balance between the use of primary legislation and secondary legislation.
In addition these amendments carry the intention that they will apply after the Nurses, Midwives and Health Visitors Act 1997 is repealed, as I understand is the Government's intention through the medium of the Bill.
The second main purpose of these amendments is to protect the role of the Privy Council. The Privy Council has a role in respect of all the professions, with the exception of the UKCC. That council's breadth of experience is valued by the professions as it provides a point for advice and informal consultation. As devolution progresses, a further benefit will become evident. The Privy Council will be able to ensure that proper weight is given to the views of the Scottish, Northern Irish and Welsh assemblies.
The Privy Council is to some extent removed from the political fray in which departments of state are inevitably immersed, and the professions attach great importance to that. They hold the Privy Council and its contribution to their work in high regard and want to ensure that existing links continue. If the links are to be broken, it must be by primary legislation.
The final purpose achieved by this group of amendments relates specifically to the professions regulated by the Professions Supplementary to Medicine Act 1960, about which we have already heard much this afternoon. At present there are nine such professions. They include the physiotherapists, occupational therapists, chiropodists and podiatrists, but there are many others, including psychologists, clinical scientists and speech and language therapists, who are seeking regulation in order to achieve protection of title--a point to which I shall return briefly--but above all to ensure that those practising in those professions are registered and properly qualified.
The amendments make appropriate provisions to ensure that when a successor body to the CPSM is established the regulatory functions are reserved to that successor body. They also ensure that where the use of certain titles is protected those titles will continue to have at least the same level of protection and that the new body will come under aegis of the Privy Council, as the CPSM urgently wishes. We look forward to seeing, and to being consulted on, details of the Government's proposals under the new order-making powers effected under the Bill relating to the successor to the Council for Professions Allied to Medicine.
The regulatory bodies are not asking for the status quo to be protected. They recognise that the order-making power could be very useful in modernising systems of self-regulation, and they welcome this. I should like to give examples. The GMC wishes to see the Medical Act 1983 amended to create a single system of registration for overseas doctors, a change which would now be possible only under primary legislation and one which would be greatly welcomed by the Commission for Racial Equality. It is also the wish of the General Dental Council to increase its lay membership and have powers over professional performance such as those now available to the GMC. These are all issues which readily could be, and we hope will be, dealt with by order. But fundamental change in the nature and functions of these bodies should be reserved to primary legislation for Parliament to decide.
I must now refer in detail to the purpose of the individual amendments. Amendment No. 202 is a purely technical amendment relating to others upon which it will be conditional.
Amendment No. 203 refers to the use of the term "professional body". The substance of this and other amendments is that there is no need for any reference to a "professional body" in the Bill since the order-making power should not be used to transfer functions away from existing regulatory bodies. Hence we propose the substitution of "regulatory" for "professional".
Amendment No. 204 is a little more detailed and complex. It adds to the protection specified in Amendment No. 210. It deletes the existing wording,
Heading (b) preserves existing protections on the use of title or functions--in other words, non-dentists practising as denturists or non-state-registered practitioners calling themselves state-registered, which would be specifically precluded--and the penalties which might be imposed on those in breach. With regard to protection of title, I mention in passing that there is no law in this country to prevent anyone from practising medicine. One cannot practise as a dentist unless one is registered under the Dentists Act or unless one is a doctor acting in an emergency. One cannot practise as a veterinary surgeon unless one is registered. But the only protection in law for practising doctors is that it is illegal for anyone not registered under the Medical Act to call themselves a registered medical practitioner. That is the protected title in medicine.
Heading (c) protects the role of the Privy Council where it currently exists. The 25 lay members are nominated to the GMC by the Privy Council, which must approve the GMC's rules and its electoral scheme. Under the Medical Act 1983 default powers fall to the Privy Council. If the GMC is not discharging its statutory function, the Privy Council may notify the GMC and give instructions to it or exercise any power vested in the GMC; and in turn the GMC, or its education committee, may recommend to the Privy Council that a registration previously conferred by a training body, such as a medical school or university, should no longer be registered under the medical Acts. Any doctor who is struck off the register by the General Medical Council has the right of appeal to the Judicial Committee of the Privy Council. These are issues about which all the professions feel strongly, and the same issues relate to each of the professions.
Heading (d) reintroduces the prohibition on abolition of a regulatory body by order.
I realise that these are extremely complex matters. Sub-paragraph (2) of the amendment allows an order-making power to be used to enable a regulatory body itself to make rules to reduce the proportion of its professional members. The General Dental Council, for example, would like to be able to increase its lay membership by a change in rules, and the order-making power would be useful in achieving that.
Amendment No. 207 refers back to Clause 47. The effect is to exclude consideration of the Council for Professions Supplementary to Medicine at this point.
In Amendment No. 208 the amendment to line 6 on page 52 is crucial. The substitution of "regulatory" for "professional" removes any function of a professional body as defined in paragraph 10 of the schedule.
Similarly, by specifying "that regulatory" body, Amendment No. 209 prohibits the transfer by order of any function by a person or body other than the regulatory body which currently exercises that function. Such a fundamental change should not be made by secondary legislation.
Amendment No. 210 relates to misconduct. At present the Bill appears to allow for the possibility of a regulatory body acting as an agency or secretariat to a third party that decided the outcome of cases, hence the addition of the words "and determining cases", which is within the authority of each of the self-regulatory authorities at the moment. Any change in the function of determining fitness to practise cases would be fundamental and so should be reserved to primary legislation.
Amendment No. 211 simply adds, in paragraph (e), the need to include continuing professional development and education for those on a register, and paragraph (f) preserves financial independence to set fees for registrants.
Amendment No. 213 is an important amendment to which reference was made earlier today. The amendment seeks to achieve the same protections for the successor body to the CPSM. The Health Bill repeals the Professions Supplementary to Medicine Act 1960. As currently drafted, the limits in Schedule 3 would apply to the existing CPSM but not its successor. This is a matter of concern to that body.
Amendment No. 215 is consequent upon the earlier amendments. There is no need to define a professional body if there is no prospect that the core functions of a regulatory body will be taken over by anyone other than that body as a result of the order-making power.
Finally, Amendment No. 216 includes in the definition of a professional body a reference to its committees. We were not clear what the department had in mind in drafting that particular provision. However, having just deleted "professional body" under these amendments we have added "committees" to the definition of "regulatory body" for tidiness because many of the existing regulatory bodies have committees with statutory functions. Amendment No. 217 is a purely technical matter that relates to the earlier amendments.
I appreciate that this is a series of complex amendments, but because they are interrelated it is important to speak to each of them and to the principles that underlie them. I seek to reassure the noble Lord, Lord Peston, and other Members of the Committee that all of the self-regulatory bodies referred to in the Bill and those to whom I have referred in moving this amendment, are deeply anxious to maintain and improve their role in regulating the professional activities in all respects in the interests of the public. I beg to move.
Earl Howe: I rise to express emphatic support for this group of amendments. With Clause 47 and Schedule 3 we are considering a part of the Bill that grants to the Secretary of State powers to make fundamental changes to the primary legislation that governs professional self-regulation. These powers are sweeping and unprecedented. To appreciate their import fully they need to be seen not merely as a set of self-contained issues but as part of a much wider agenda, evidenced by other parts of the Bill, to tighten political control over the medical profession. That prospect fills those of us on these Benches with deep dismay.
As the noble Lord, Lord Walton, said, professional self-regulation has been the cornerstone on which public trust and confidence in the medical profession has been founded for the past 150 years. One of the main reasons for that is that the professionals themselves have confidence in the system. The regulatory function of the GMC works because doctors know that the standards of conduct and practice that they uphold can be determined and assessed in the final analysis only by their peers. The Minister said at Second Reading that self-regulation was part of the quality agenda. To subject the medical profession to direct government control, as this Bill would allow, would be deeply detrimental to the quality of patient care.
If the aim of the Government is greater consistency of care within the NHS, as the Minister has said a number of times, that can be achieved perfectly well without these powers. I do not oppose the order-making powers in Clause 47 of the Bill; indeed, there is every argument for having them to make quick and sensible improvements to the detail of the regulatory framework of the medical profession as the need arises. However, I oppose the completely open-ended and sweeping nature of the powers. Nor do I understand why such powers are needed if Ministers' pronouncements on this subject are to be believed. The Minister herself said at Second Reading:
I very much hope that the Minister's hitherto constructive approach to debates in Committee and her desire to listen to the arguments put forward will again be evident in her response to these amendments.
Page 51, line 9, after ("may") insert (", subject to paragraphs 7 to 8A,").
"An Order may not abolish the regulatory body of any profession",
and sets out other purposes for which an order-making power cannot be used. Heading (a) prevents the reduction by order of the proportion of professional members of a regulatory body.
5.15 p.m.
"We do not wish to dismantle the framework of professional self-regulation".--[Official Report, 9/2/99; col. 186.]
If that is so, the Government must say straight away that they accept the thrust of these amendments. If not, the despondency and distrust that is now evident in the medical profession will be magnified out of recognition. The Minister must realise that good intentions on this issue are not enough. If these powers are incorporated into the Bill those good intentions need count for nothing under a different set of Ministers in a future government. Underlying this issue is the need to achieve partnership and co-operation instead of conflict with the medical profession.
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