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The noble Earl said: Amendment No. 131 is about the relationship between the OHPA and the Council for Healthcare Regulatory Excellence. It brings us to a simple but important point: if the function of the CHRE is to audit the decision-making of the medical regulators, and if the OHPA is to be an integral part of the medical regulatory process, the CHRE must have free access to the work that the OHPA is doing. At the moment the Bill provides no guarantee that the CHRE will have such access. It seems fundamental that there should be a duty on the part of the OHPA to co-operate with the CHRE and to share information with it to enable the CHRE to perform its job effectively.

Although I do not know what the Minister is going to say to me—she may say that the OHPA would naturally wish to share information with the CHRE and that the amendment is therefore unnecessary—we need only reflect on the possibility, which we hope is quite remote but not unthinkable, that the CHRE might, for whatever reason, feel disposed to criticise the way in which the OHPA performed its work. In those circumstances, there could well be reluctance on the part of the OHPA to be as helpful as it should be towards the supervising regulatory body. We cannot in all situations rely on people’s good will. That is why we need an explicit duty in statute in order to place the matter beyond doubt. In fact, the very existence of such a duty should guarantee that it never needs to be formally invoked. I beg to move.

Baroness Cumberlege: I support my noble friend. I understand that the CHRE has reviewed 1,200 cases, and out of those it has taken only six to court. Importantly, however, those six were very important cases, and it won each one in the Court of Appeal. This is a critical issue.

Lord Walton of Detchant: I have made my view abundantly clear on several occasions that the CHRE is totally redundant and unnecessary. It is a quango that I would love to see abolished. As it exists, and as there is no prospect of that body being abolished, I strongly support the amendment.

Baroness Thornton: Amendment No. 131 proposes that a new clause be inserted after Clause 103. The new clause would require the Office of the Health Professions Adjudicator to co-operate with the Council for Healthcare Regulatory Excellence to enable the CHRE to perform its functions. This is a sensible issue to raise, and it is something that we considered carefully when drafting the legislation, so I am glad to have the opportunity to explain our views.

There are two possible purposes for having such a duty. The first is to ensure that the OHPA benefits from the CHRE’s expertise in regulatory matters, and the second is to ensure that the CHRE can obtain the information that it needs from the OHPA to carry out its own statutory functions properly.

On the first possible purpose, to ensure that the OHPA benefits from the CHRE’s expertise, the Bill as drafted already does so. Under Clause 104, the Bill requires the OHPA to consult the CHRE on its draft rules, which will set out almost every facet of its

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processes. By requiring the OHPA to consult the CHRE on those rules, the Bill ensures that there is an appropriate statutory guarantee that the CHRE will be able to express views and advise on existing best practice on all the important issues that the rules deal with.

On the second possible purpose of having such a duty, to ensure that the CHRE can obtain the information that it needs—which the noble Earl referred to—from the OHPA to carry out its functions properly, existing legislation is already adequate. The OHPA is not a regulatory body; it will have functions only in relation to adjudication. The CHRE’s remit and functions extend only to regulatory bodies. I am happy to reassure Members of the Committee that legislation is already in place to ensure that the CHRE is able to obtain information about how the GMC and the GOC carry out the investigation, referral and presentation of fitness-to-practise cases for adjudication, which will of course be matters still falling within the CHRE’s remit.

Any information that the CHRE might require in relation to the GMC’s or the GOC’s continued role in fitness to practise would be obtained from the relevant regulatory body. Section 27 of the National Health Service Reform and Health Care Professions Act 2002 already places a statutory duty on the regulatory bodies to co-operate with the CHRE, which includes the provision of information when requested by the CHRE.

However, I emphasise that there would also be nothing to prevent the OHPA and the CHRE working together where that was beneficial. That model has already worked for the General Social Care Council, which is not in the CHRE’s remit, but which works with the CHRE. For example, the CHRE recently extended an invitation to the General Social Care Council to participate in work on professional boundaries. The CHRE also works effectively with patient and public organisations without any formal duty of co-operation. In light of my explanations on this issue, I hope that the noble Earl, Lord Howe, will feel able to withdraw the amendment.

Earl Howe: The Minister’s reply is in large measure reassuring. The central point to grasp, if I have grasped it correctly, is that the duty on the part of the GMC to co-operate with the CHRE will ensure that all the necessary information that the CHRE needs is passed to it, even if it has to come by a roundabout route. If it is information from the OHPA, it is almost certain that the GMC will have that information to pass across. I shall consider carefully what she has said. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 104 to 106 agreed to.

7.30 pm

Schedule 8 [Extension of powers under s. 60 of Health Act 1999]:

Lord Tunnicliffe moved Amendment No. 132:

The noble Lord said: In moving Amendment No. 132, I shall speak also to Amendments Nos. 134 to 136, 152 and 220 to 225.



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On the basis of the recommendations of the Hampton review on regulatory inspection and enforcement in 2005, the Government committed to abolishing the Hearing Aid Council by April 2009 and to transferring responsibility for the regulation of private hearing aid dispensers to the Health Professions Council. This group of amendments is intended to achieve that, in addition to ensuring that public hearing aid dispensers can also be regulated in the future in the same way.

First, I acknowledge that it is not ideal to introduce this change into the Bill at such a late stage. The Department for Business, Enterprise and Regulatory Reform, which leads on delivering this commitment, had considered a number of mechanisms to achieve the policy aims, but it became clear that primary legislation would be needed. It made sense to use this Bill both to meet the timescale and because it already includes substantial measures to reform the system of professional regulation. In modernising the regulation of hearing aid dispensers, and allowing for future consistency between public and private hearing aid dispensers, these measures contribute to the wider programme of professional regulatory reform. I recognise that the timing is not ideal, but I hope that I am able to persuade noble Lords that the great benefits that this measure will bring are worth this disadvantage.

Most importantly, this measure will provide improved protection for the hearing-impaired. For nearly 40 years, the Hearing Aid Council has done an excellent job in regulating the private hearing aid profession. I put on record the Government’s thanks for the important work that the council has done over four decades. However, it is operating under legislation that is increasingly outdated, with gaps in consumer protection. The Health Professions Council, which was established in 2001, has modern and comprehensive legislation that will provide a much more complete service to patients and consumers. For example, the Health Professions Council has extensive fitness-to-practise powers, allowing it to remove someone from the register who it finds poses a serious risk before the registrant actually causes harm. In contrast, the Hearing Aid Council must wait until harm has been done before it can take action.

This measure also paves the way for the regulation of public and private dispensers on a single register with a single set of standards. Currently, hearing aid dispensers in the private sector are regulated by the Hearing Aid Council, with NHS hearing aid dispensers unregulated. Clearly, this will improve protection for the hearing-impaired.

I know that this principle is close to the hearts of many noble Lords: we will be reducing the number of regulators in existence. The Health Professions Council already regulates 13 different professions, so it is well equipped to regulate one more.

Finally, it is important to emphasise that both the Hearing Aid Council and the Health Professions Council fully support this move. Both organisations have worked very closely together over the past year to ensure that the transition will be as smooth as possible. Furthermore, the professional body, the

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British Society of Hearing Aid Audiologists, is very much in favour of this and has committed to continue working with both organisations during the transition from one to the other. The Royal National Institute for the Deaf also believes that its consumers will benefit from the change.

Subject to the passage of the Bill, it is therefore the Government’s intention to bring forward an Order in Council later this year under the Section 60 provisions of the Health Act 1999 to allow the Health Professions Council to assume responsibility for the regulation of private hearing aid dispensers. This will require a formal 12-week consultation, followed by a debate in both Houses. The amendments and the future Section 60 order will ensure that the needs of the vulnerable are better protected under the auspices of a multi-professional statutory regulator, which has greater resources yet charges considerably smaller registrant fees.

Therefore, I hope that Members of the Committee will forgive the fact that this is a late addition to the Bill and will feel able to support the amendments. I beg to move.

Baroness Howe of Idlicote: I particularly welcome Amendment No. 152. Perhaps I should declare an interest as a hearing aid user for over 50 years and as one of the first people lucky enough to be able to afford a digital hearing aid, so I know how valuable they are. I therefore applauded the Government when they introduced a very reasonable range of digital hearing aids through the NHS. But, as the Minister and noble Lords know, waiting times for those aids are very uneven around the country. One must hope that what is being proposed will help to speed up the process.

As we have heard, the Hearing Aid Council regulates the independent sector. Under the new scheme, the Health Professions Council will ultimately do the work of both councils. I find it odd that some NHS hearing aid dispensers are not required to have any qualifications, so that will be a plus. I was also amazed to learn that because the Hearing Aid Council is a relatively small body, it has to charge something like £695 a year for registration. It is hoped that that figure will drop to around £60 when the change is made. However, everybody says that the council has done an absolutely marvellous job. No doubt all the professionals would want to add their thanks to those that have already been made.

All is going in the right direction, and I am particularly glad to hear that the transition is likely to take place later this year. That must be good news. I should like confirmation from the Minister that when we say that this will take place, it actually will happen and the handover will begin. I seek that confirmation because quite a number of hearing aid dispensers in the independent sector could be employed in the National Health Service and thus reduce waiting lists. The time for that to happen has more than passed, so we need good news on this front.

The Government have always argued for an inclusive society. I speak from experience when I say that if there is one area which excludes you, it is not

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being able to hear the conversation taking place around you. Age is a factor which adds to this problem, even if, like me, you have had a different hearing problem for a long time. The more people are able to live to an older age, the more likely it is that they will have this problem.

We all welcome the fact that the merger will benefit clients, and we know that the RNID is very much in favour of it. We also know that of course BSHAA equally welcomes it. Moreover—and one has to say that this does not always happen—all the parties have been working together really well for quite some time.

Earl Howe: I am sure that the Committee will be grateful to the Minister for his explanation of the amendments. In his absence, I thank the noble Lord, Lord Darzi, for writing to me about them in advance. I have no difficulty with the principle of what is proposed, which appears to be potentially beneficial to registered hearing aid dispensers as well as their customers. As has been said, the professional bodies most closely associated with audiology are in favour.

I have only three questions. The first concerns regulatory clarity. One feature of the proposals is that complaints by consumers will no longer be directed toward a single body, as they are at the moment. Complaints that fall under the heading of consumer protection will fall to the Office of Fair Trading or trading standards officers. Complaints about fitness-to-practise matters and professional standards will fall to the HPC. Is the Minister satisfied that the new system will be simple for the consumer to understand and navigate? An ordinary man or woman, especially if they are elderly and frail, wants a straightforward process. This aspect of the changes introduces greater complexity and scope of confusion.

My second question relates to the transition. If there are fitness-to-practise cases in train when the transfer to the HPC is effected, how will they be concluded? On complaints, will the Government ensure that there is the minimum hiatus between one set of arrangements and the next? It would be unacceptable for consumers if the HAC’s work in dealing with complaints was suddenly terminated before the complaints were resolved, only then for the matters in question to be dealt with from scratch either by the HPC or one or other of the trading standards bodies. How will the transition be achieved smoothly so as not to disadvantage the consumer with undue delays?

My third question relates to the employees of the Hearing Aid Council itself. How many employees are there? Are there new jobs for them to go to, and will their employment rights be protected under TUPE arrangements if they transfer to the HPC?

Lord Tunnicliffe: First, I thank noble Lords for their general support. At the moment, I am let loose only on things about which people agree. I agree that it is odd that those in the public sector were not registrants; the proposals address that. On the matter of charges, yes, there will be a real reduction in fees. The Hearing Aid Council is a very small organisation with about 1,700 registrants, 200 of which are

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employers. To fund the running of the council, it now charges registrants an annual fee of £695. The Health Professions Council, in contrast, regulates about 180,000 health professionals. It has significant resources at its disposal—vastly greater than the Hearing Aid Council—and charges its registrants £72 a year. I am sure that the Committee will appreciate that the difference in fees of more than £600 a year is not inconsiderable to the hearing aid profession.

I was invited to assure the noble Baroness that the transition will take place this year. I have to disappoint her. It will be taken with all due speed, but the transition will be next year. I think that I am right to say that the target was April; we are doing our best to achieve that, but we will have to publish the Section 60 order, and of course we will want a proper 12-week consultation.

Some of the noble Earl’s concerns are covered by a communications campaign jointly instigated by the HAC and the HPC aimed at all relevant stakeholders to ensure that they are all aware of the impending change. The HAC has begun working with the RNID, Hearing Concern, Citizens Advice and other consumer groups to ensure that the campaign reaches its intended audience. The HPC and HAC are already working out a plan for a smooth transition, and have been planning this for two years. I can write to noble Lords with more detail if that would be helpful.

Finally, what about the workers? The Hearing Aid Council has a very small staff. The only full-time staff are three executive assistants and a modernisation and transfer manager. The chief executive, the registrar and the director of resources all work between one and two days a week, and the legal director works one and a half days a month. The council is working towards abolition in 2009, and any continuing uncertainty may affect staff retention. No staff are expected to transfer to the HPC, but we are confident that the two years of close co-operation with the HPC and the better protection will ensure that expertise is not lost.

On Question, amendment agreed to.

[Amendment No. 133 not moved.]

7.45 pm

Lord Tunnicliffe moved Amendments Nos. 134 and 135:

(c) after paragraph (c) insert—“(ca) the profession regulated by so much of the Hearing Aid Council Act 1968 as relates to dispensers of hearing aids,”.”

On Question, amendments agreed to.

Baroness Gardner of Parkes moved Amendment No. 135A:



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The noble Baroness said: This is a fairly clear and self-explanatory amendment. I am very concerned about the proposed changes to the General Medical Council and to the General Dental Council, which I know better. The proposal is that these will have 24 fully appointed members. Over the years, I have seen great variations in the make-up of the General Dental Council. I understand that originally almost all the members were nominated, but then there was demand for elections. I was elected as a general dental practitioner to represent general dentists. Then we reached the point when, in 2003, all nominated members were thrown out and all the dentist members were fully elected. The General Dental Council had 29 members, of which 15 were dentists who were all elected by a single transferable vote, 10 lay members and four hygienists or therapists. As I said, the General Dental Council decided that nominated members were not satisfactory and the change was made; all the dentists were fully elected in 2003. We are only in 2008 and the General Dental Council is proposing to throw out all the elected people.

I understand that a reliable and well informed independent appointments commission will take these decisions, but whatever the answer—I am sure it will be a reliable panel—it is taking away from the members of the profession their democratic right to elect representatives who really do understand the everyday problems of dentists in practice. As a member of the General Dental Council, I found that some people who were elected to represent general dentists—I do not think that I was any great help in this respect—raised amazingly important and interesting matters that affected every bit of general dental practice. There is perhaps a great division between dentists in National Health Service practices, who were the ones who were being elected, and people who are in important private practice. It is a retrogressive step in a democracy if we turn round and say that members of the profession will have no say in deciding who represents them. My amendment proposes that we retain at least an elected element on these authorities. I beg to move.

Baroness Thornton: I shall take the issue of the composition of regulatory body councils first. The Bill does not tell the full story of the Government’s policy in that respect. As set out in the White Paper, Trust, Assurance and Safety, the Bill removes the restriction in Section 60 of the Health Act 1999 on lay majorities on the councils of healthcare professional regulators. It is our intention that subsequent secondary legislation will then ensure that all councils have parity of membership between lay and professional members as a minimum. We think it is important that every regulatory body has at least parity, because professional majorities on a council can undermine the perception of its independence from the interests of the profession. I think there is widespread agreement about that. Having parity will

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remove any doubts that a professional majority can influence a council’s decision-making process in favour of the profession.

The intention is that every professional regulatory body will have parity, but the removal of restrictions on lay majorities in the Bill will also allow us to consider, on a case-by-case basis, requests from regulatory bodies to move to a lay majority. We want to make that option available to the regulators because moving to a lay majority is an opportunity for a regulator to send a clear and public signal that the interests of patients and the public are at the very heart of what they do. After all, the very reason that a regulatory system exists is to protect patient safety, and having a lay majority may reflect that purpose. This has been recognised by some regulators, including the General Optical Council.


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