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Baroness Hayman moved Amendment No. 79C:
The noble Baroness said: My Lords, it has been our aim from the beginning in matters of professional self-regulation to strike an appropriate balance in the provisions in this Bill between the flexibility required to enable the modernisation of the legislation concerning professional self-regulation and the safeguards appropriate to such a broad power. I listened carefully to the concerns that were expressed on all sides of the House at Committee stage at certain aspects of the order-making power and undertook to bring forward amendments on a number of issues. These amendments reflect that undertaking.
First, I shall discuss consultation and the recommendations of the Select Committee of your Lordships' House. We have been mindful in taking these powers of the great responsibility to use them carefully and reasonably. We have built into the process for the making of orders a number of checks and balances: the requirement for draft orders to be published at least three months before they are laid before Parliament; the requirement for consultation on the draft order during that period; and the requirement for approval of Parliament under affirmative procedures.
As I said in Committee, the Select Committee on Delegated Powers and Deregulation has given these proposals its usual thorough scrutiny. I am particularly grateful for the assistance of the committee in proposing a way of meeting the concerns expressed at Second Reading. Taking these powers imposes an obligation on the Secretary of State to act reasonably and responsibly, and this requires transparency. The suggestion that the Minister should be called to account by a requirement to report on the outcome of consultation appears to us to be a sound one and we have included provision for a report on the consultation to be made to Parliament in paragraph 9(2) of Schedule 3 by Amendment No. 97.
This would be particularly important when the unqualified agreement of the profession concerned has not been secured to the change but where the strength of the argument is for the order to be made. I envisage that the report would provide a summary of the representations made to the Secretary of State and, in particular, would include whether the proposals have the agreement of the professions concerned and the points of disagreement if there are any. It would certainly need to include the points that most influenced or contributed to any decision to go ahead without the agreement of the profession.
The Select Committee also recommended that the Bill,
We believe that protecting patients is at the heart of professional self-regulation. It is clearly of fundamental importance, therefore, that the order-making power may be used where this would improve the services provided to patients. The order-making power could therefore be used to strengthen protection of title; to improve fitness to practise provisions; to institute measures to deal with poorly performing practitioners; or to institute revalidation or mandatory continuing professional development. These are all issues of protection of patient safety.
Secondly, the power may be used for the better regulation of the profession concerned. This is extremely important, not least to ensure that modern, effective and flexible legislation can be made to replace some of the overly detailed, overly specific legislation of the past. For example, an amendment to the Dentist Act is required simply to enable the GDC to increase the number of lay members on its board. An amendment to the Medical Act is required to enable the GMC to bring forward a single procedure for the registration of overseas doctors.
I was grateful to the noble Baroness, Lady Wilcox, for reminding us in debate in Committee last week that the primary purpose of regulating the healthcare professions is the protection of the public. That was clear in the contributions of the professionals who spoke. She made that point very much in the context of taking into account the consumer interest--that of patients, families and carers--in developing healthcare policies. The whole House will agree that this is of fundamental importance in the development of professional self-regulation, where patient protection is such a key issue.
It has always been our intention that consultation should be wide so that we capture the views of the professions, the National Health Service and the public in all parts of the United Kingdom. We do not wish to create a list on the face of the Bill. But we want to make it quite clear that the Secretary of State should be required to consult not only the profession affected by the proposed order but also representatives of the users of professional healthcare services. That is the issue to which the noble Baroness's amendment addresses itself.
At Committee stage I said that I would give the issue some thought and bring forward a suitable amendment at some stage in the further progress of the Bill. I assure
Lord Skelmersdale: My Lords, the noble Baroness is speaking more and more quietly as the evening progresses. I am not surprised by that. Will she repeat her last two or three sentences because I did not catch them?
Baroness Hayman: My Lords, I apologise. I shall clear my throat and try to do better. I asked the noble Baroness, Lady Wilcox, whether she would be willing not to move her amendment on the basis of the Government bringing forward an amendment at a later stage, and I flagged up that I would hope to be able to bring forward some other government amendments, if possible in time for Third Reading, to meet commitments made in Committee and on Report, in particular on Part II regarding remuneration and to make some other minor improvements.
Lord Skelmersdale: My Lords, I am grateful to the noble Baroness.
Baroness Hayman: My Lords, some concern was expressed at the Committee stage, and by the professional regulatory bodies, that the Government might seek to use the order-making power to impose a lay majority on regulatory councils. That was never our intention. Therefore, we have brought forward Amendment No. 94 which prevents the order-making power being used to impose a lay majority on a regulatory body.
I should like to emphasise, however, that this in no way reflects any doubt about the value of the contribution of lay members on professional regulatory bodies both in developing policies and in the fitness to practise committees. Rather we welcome the moves of some councils to increase lay membership and improve accountability to the public. We believe that lay membership offers an opportunity to involve people with different expertise and experience; helps ensure that regulatory bodies do not operate in isolation from developments and changes in other parts of the professional world or society at large; and demonstrates the bodies' commitment to open and accountable self-regulation.
The order-making power can still be used to increase the number of lay members or to enable a regulatory body itself to ensure a lay majority. But many of the
As I said during the Committee stage, I understand the importance that many of the professions attach to their accountability to and relationship with the Privy Council, and that is why we have provided that for the existing regulatory bodies they should not be transferred to another person. In response to the proposed amendment of the noble Lord, Lord Walton, I promised to consider this matter further and to bring forward an appropriate amendment if it were possible. It was. Amendment No. 94 preserves the role of the Privy Council in respect of pharmacists, doctors, dentists, opticians, osteopaths and chiropractors. I hope it provides the reassurance that these professions and the noble Lord, Lord Walton, were seeking.
I also said that I believe that it is right that the lines of accountability for new and replacement organisations should be fully explored. We propose to set up bodies to replace the CPSM and the UKCC. Their current accountability arrangements differ. As with other bodies, the CPSM is accountable to the Privy Council. The UKCC, however, is accountable to the Secretary of State, and that relationship has proved a very effective one. The Review of the Nurses, Midwives and Health Visitors Act recommended that accountability to the Secretary of State should be retained under new arrangements. The review of the Professions Supplementary to Medicine Act left open the question of accountability under the new arrangements. As I have already indicated on previous amendments, in view of the strength of feeling expressed on this issue, we intend to consult on the basis of retaining Privy Council accountability for the CPSM's successor body.
On 9th February I announced the publication, with a government response, of the independent report of the review of the Nurses, Midwives and Health Visitors Act. One of the main recommendations, which we accept, is that the dual regulatory structure of a council and four national boards be replaced with a new UK-wide body, with ultimate responsibility for regulating the professions, and that national arrangements be made in respect of some functions previously carried out by the boards. The Government response to the report was issued with a health service circular inviting views, particularly on a number of issues of detail. Following consultation on specific proposals for new legislation, we propose to bring forward new legislation to replace the current arrangements.
We have therefore brought forward an amendment which allows for the repeal of the Nurses, Midwives and Health Visitors Act once new arrangements are in place. It should be noted that the successor body to the UKCC will be subject to the same protection under the order-making power as the remaining regulatory bodies: the four fundamental functions will not be able to be transferred from the successor body, it will not be able to be abolished, and a lay majority will not be able to be imposed.
It might also be helpful to note that although the intention to repeal both the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act are included within the same subsection, this in no way prevents their repeal at different times. That means that the repeals can be made as and when the replacement legislation is ready to be brought into effect. We have already provided that the power may not be used to abolish the existing main regulatory bodies, and I have been quite clear that such action should require primary legislation. I explained in Committee that this is the reason that the Bill itself provides for repeal of the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act. These amendments ensure that the same provision applies to the regulatory bodies that succeed the CPSM and the UKCC and to any other main regulatory body established by an order; that is, it will not be possible to abolish these bodies by order.
Perhaps the most strongly argued issue in Committee was that of the protection of the four fundamental functions. We have brought forward an amendment (Amendment No. 95) which will prevent the order-making power from removing the four fundamental functions from the relevant regulatory body except, of course, the CPSM and UKCC, which we are to replace. However, the provision safeguarding these functions would then apply to the successor bodies to the CPSM and UKCC and to the regulatory body of any further professions regulated by order in future. These four fundamental functions are essential to what we understand as professional self-regulation: keeping the register; setting the standards of education for entry into the profession; the provision of guidance on standards of professional conduct; and fitness to practise procedures. We believe that the responsibility for them should not be removed by order--such a measure could only be taken through primary legislation.
I shall now deal with Amendments Nos. 106 and 107. Section 10 of the Professions Supplementary to Medicine Act enables new professions to be brought within the umbrella of the CPSM. There are several professions which have made petitions to be included under the CPSM and those are being considered. However, the order-making power makes Section 10 of the Professions Supplementary to Medicine Act 1960 redundant, as Clause 47 can be used to bring new professions into the CPSM. Perhaps more importantly, it enables such new professions to be regulated on a UK-wide basis, whereas Section 10 cannot do so in a post-devolution world, where the regulation of these new professions is not a reserved matter. Under Clause 48(7) a draft of such an order will have to be laid before, and approved by resolution of, the Scottish Parliament, in addition to the UK Parliament. Section 10 will therefore be repealed immediately on enactment of this Bill.
Amendment No. 98 removes the definition of "professional body" because it is no longer required. With the amendment of paragraph 8, the phrase does not need to be defined.
With reference to Amendment No. 92 on the charging of fees, this amendment is consequential on the removal of the definition of "professional body". Paragraph 4 ensures that provision can be made for new professional self-regulatory bodies to be given the financial independence which the other statutory regulatory bodies enjoy through the charging of fees for registration and certification, or indeed for any other services they provide.
I should make clear that repealing this Act would not affect the reserved status of the regulation of nurses, midwives and health visitors.
I hope that what we have done in bringing forward these amendments has properly covered the concerns raised both by the professions and by Members of this House. I beg to move.
Lord Skelmersdale: My Lords, following certain activities behind the scenes in this House, the noble Baroness the Minister might well regard me as a "PMM". Neither of the M's stands for "medicine" or "medical"--they stand for "parliamentary moaning Minnie". Therefore, I must begin my comments by thanking the noble Baroness for answering my moans. She did so, first, in a private letter to me on the subject of the late arrival of information from the department, for which I am truly grateful. I readily accept her information and explanation. Secondly, I received, as I suspect many noble Lords did, what was essentially a Keeling schedule to this enormous group of amendments, for which, incidentally, (another slight moan) I did not hear the noble Baroness apologise. The amendments could happily have been split up into more digestible groups. Another "mini moan" is that Amendment No. 85 pre-empts my Amendment No. 86. That is why I have risen to speak on this group of amendments. No one bothered to tell me--no one from the department, the Whip's Office, the Public Bill Office, the Minister's private office or anywhere else, or indeed my noble friend on the Front Bench. Your Lordships are all guilty.
There is a very serious point in Amendment No. 85 and my Amendment No. 86. Amendment No. 88, of course, is consequential and the noble Baroness will have been briefed on that subject.
The Explanatory Notes on the Bill point out that Clause 47 provides,
Paragraph 256 of the Explanatory Notes goes on to state:
There was a very good reason for the control of chiropractors and osteopaths by Act of Parliament. First, it was the only way at that stage of regulating them, and I readily accept that. The other reason is that noble Lords and Members of another place had views on how the registration should be conducted. If my memory serves me right, there was alteration to the Government's original plans by Members of both Houses of Parliament during the passage of those Acts.
As I read the Bill, under the current proposals in the noble Baroness's enormous group of amendments it will be possible to regulate other alternative therapies by order. The noble Baroness is nodding so I assume that I have got that right.
In Committee, I questioned whether that was desirable. I chose the illustration then of the acupuncturist, who must be in the list to which the noble Baroness referred a few moments ago. When I mentioned acupuncturists in Committee, the noble Baroness gave a speedy reply, totally ignoring that point. She said:
I do not believe it is right that such therapies should be considered as professions supplementary to medicine, which is what the Bill, even as about to be amended, gives the impression will be the situation. The noble Baroness shakes her head. I am sure that she will shortly explain at length why I am wrong and why I should sit down and shut up.
In her introduction to this group of amendments, the noble Baroness said something about Scotland which worries me even more. One of the amendments to which she spoke concerns the new Scottish Parliament "doing its own thing". That is all very well and, as I understand it, that provision is already established in law under the Scotland Act. But could the position ultimately be different either side of the Border? In other words, am I more likely to go to an alternative therapist and end up in hospital as a result of mal-treatment on one side of the border than the other? If that is the case, it must
Page 38, line 16, at end insert ("so far as appears to Her to be necessary or expedient for the purpose of securing or improving the regulation of the profession or the services which the profession provides or to which it contributes").
"might also be amended to include a statement of the criteria against which the Minister could act in the absence of agreement with the professional body or bodies concerned".
We believe that an important aspect of professional self-regulation is that the statutory regulatory bodies should be accountable and act transparently. It behoves us as a Government to do the same when using these order-making powers. We have therefore gone one step further and built into the main clause, at Clause 47(1)(a), a statement of the purpose for which the order-making power may be used to make any changes to professional self-regulation. Amendment No. 79C addresses that matter.
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"for Her Majesty by Order in Council to modify the regulation of pharmacists, doctors, dentists, opticians, osteopaths, chiropractors and nurses, midwives and health visitors",
all of which are currently registered and controlled under Act of Parliament.
"However, the scope of the order-making power is not limited to those Acts".
My hackles immediately rose. We are talking about two sorts of professions. In all the documents I have ever seen, the noble Baroness and the department have talked only about what might be described as professions
supplementary to medicine. The noble Baroness has not talked about alternative therapies. And I am very worried about the control of alternative therapies.
"It might well be that a profession joins a successor body of the CPSM. At the moment it is possible, by secondary legislation, for a new profession to be regulated for the first time. It has been done with the art therapists recently".
Art therapy is non-invasive and, with the best will in the world, cannot be described as an alternative therapy. The noble Baroness went on to say:
"There are now three applications to the Privy Council including one from clinical scientists".--[Official Report, 4/3/99; col. 1804.]
That again is something which is readily understood and accepted by the medical profession. But there are other therapies of various kinds--for example, reflexology and aromatherapy--all of which, if badly conducted, could cause injury resulting in hospitalisation for the patient who has voluntarily undergone the therapy and paid for it.
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