Clause 24 - Powers and duties of the Council: general

NHS Reform and Health Care Professions Bill – in a Public Bill Committee at 4:45 pm on 11th December 2001.

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Amendment made: No. 199, in page 29, line 19, leave out '(5)' and insert '(5A)'.—[Mr. Hutton.]

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

On a point of order, Mr. Hurst. I thought I heard you say that we had approved amendment No. 119.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I beg to move amendment No. 200, in page 29, line 40, leave out from 'ended' to end of line 42.

This amendment, which I was trying to speak to earlier, deals with an inconsistency in the drafting of this clause and of clause 27(1). Subsections 24(3) and (4) are designed to do three things: to prevent the council from intervening in the cases of individuals that a regulatory body is considering; to allow the council to investigate a complaint about maladministration, which is dealt with further in clause 26; and to allow the council to exercise its public interest appeals powers as described in clause 27, but only after the regulatory body's proceedings have ended. As drafted, the words in brackets in clause 24(4), which the amendment will delete, suggest that, under clause 27, the council could take action, even in cases where it was decided not to undertake regulatory body proceedings. It was never intended that clause 27 should apply in such cases, and the amendment will remove any possible inconsistency between the two clauses.

It might also help if I make clear the definition of ''proceedings'' in clause 24(10), which states that

'''proceedings', in relation to a regulatory body, or one of its committees or officers, includes a process of decision-making by which a decision could be made affecting the registration of the individual in question.''

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

If a regulatory body refuses to investigate a complaint, can the council do nothing?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The issue is dealt with in other clauses in terms of the meaning of final decisions, and the council's ability to exercise its right of appeal to the High Court in cases where an unduly lenient decision has been taken. The hon. Gentleman's point is an interesting one and I understand it entirely. In an effort to avoid deciding on a difficult case, proceedings might not be instigated at all. That could raise different subsidiary issues about the work of that regulatory body, which the council itself might want to initiate. However, we are discussing the public interest right of appeal in clause 27 and how it is supposed to be triggered. It is based on an unduly lenient decision of the regulatory body itself. The council might have to consider an alternative route for dealing with such issues, rather than using clause 27 to exercise its right of appeal against unduly lenient decisions.

The hon. Gentleman has raised a fair point about the regulatory body's deciding not to initiate a process. In that event, the matter would have to be dealt with in the first instance by the regulatory body itself. Any suggestion of a deliberate attempt to circumvent natural justice or proper public safety and scrutiny would be a matter of serious concern that the council would want to raise with the regulatory body. I ask the hon. Gentleman to give me time to reflect. In clearing up the inconsistency between clauses 24 and 27, it is certainly not the Government's intention to create a further loophole that would subvert the provision of better public confidence in professionally led self-regulation.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I simply wondered whether the council could undertake a judicial review of the regulatory body's decision under mandamus, and thereby require it to take a decision. Alternatively, is there some method by which it might be required to undertake an investigation? I am clearly happy for the Minister to give the matter further thought—I simply wondered whether a common law route might be available.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

It might well be, but the problem might also be solved by reference to the Secretary of State's powers in clause 26 to construct a regulation dealing with maladministration complaints. It is important to place on record the fact that it would be difficult to imagine a regulatory body discharging its functions properly in the sort of example that he gave. If there were clear evidence of such a decision by a regulatory body, it would certainly give rise to serious concern in the House and among the public at large. I am not aware of any complaints about regulatory bodies making such decisions, but I am aware that concern has been expressed by the public and Members of the

House about decisions of regulatory bodies' fitness to practise committees, and so on. The hon. Member for Westbury (Dr. Murrison) will be aware of some of those. That complaint is more typical and common than complaints about decisions not to initiate proceedings.

We have tried to draw a distinction between decision-making processes involving the General Medical Council, the General Dental Council and any other body, because there is insufficient evidence to merit a proper fitness-to-practise decision-making process being initiated, and the decisions of the fitness to practise committee. The public interest is served in the case that we have tried to specify in the Bill when an unduly lenient decision raises serious issues of public concern. That is where we envisage council intervention. We certainly do not intend the UK council to have competence to examine every decision by a regulatory body not to initiate proceedings. As a matter of common sense and judgment, that must properly be left to the decision-making processes of the regulatory bodies.

Amendment agreed to.

Amendment made: No. 201, in page 30, line 7, at end insert—

'(5A) The Council may not do anything in relation to the functions of the Pharmaceutical Society of Northern Ireland (or its Council, or an officer or committee of the Society) unless those functions are—

(a) conferred on the Society (or its Council, or an officer or committee of the Society) by or by virtue of any provision of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)), other than Article 3(3)(e) (the benevolent functions),

(b) conferred as mentioned in paragraph (a) by, or by virtue of, an Order in Council under section 60 of the 1999 Act or an order under section 56 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (which makes provision corresponding to section 60 of the 1999 Act), or

(c) otherwise conferred as mentioned in paragraph (a) and relate to the regulation of the profession regulated by the Pharmacy (Northern Ireland) Order 1976.'.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I beg to move amendment No. 233, in page 30, line 12, after 'must', insert

'consult with the profession and'.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

With this it will be convenient to take the following amendments: No. 234, in page 30, leave out lines 21 to 23.

No. 235, in page 30, in line 33, leave out from second 'profession' to 'which' in line 34.

No. 236, in page 30, line 34, leave out '(wholly or partly)'.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Under clause 24(7), if the Secretary of State asks for advice--this applies also to other authorities that might seek advice--about the health care profession, the council must give such advice. Amendment No. 233 would require the council to consult the profession when that request is made. It also raises the question of the Secretary of State's purpose in seeking advice and what the Minister has in mind. Does the Minister agree that if the Secretary of State, the National Assembly for Wales, Scottish Ministers, and the Ministry of Health, Social Services

and Public Safety in Northern Ireland asked for advice, consultation would almost inevitably be necessary? The primary purpose of the amendment is to find out what the Minister has in mind for the sort of advice that might be requested.

Section 60 of the Health Act 1999 gives a regulation-making power to the Secretary of State and clause 24(8) adds to that list. Amendment No. 234 would delete a provision in paragraph (e) that allows the Secretary of State to modify

''the range of functions of that body in relation to which the Council performs its functions.''

This is a probing amendment to test whether the provision is necessary and the reasons for it. I invite the Minister to explain exactly what he has in mind in subsection (8)(e).

Amendments Nos. 235 and 236 would delete the words in brackets in subsection (11), which states:

''In this section, 'health care profession' means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals.''

Why should it not read, ''In this section, 'health care profession' means a profession which is concerned with the physical or mental health of individuals''? I am sure that the Minister will tell me that there are extremely good reasons for that, but so often in the drafting of clauses there is a great deal of surplusage. I should be grateful if he would explain why that drafting is needed.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham 5:00 pm, 11th December 2001

Clause 24(8)(e) states:

''modifying, as respects any such regulatory body, the range of functions of that body in relation to which the Council performs its functions.''

Will the Minister explain that in more detail and give us an example of the sort of change that might lead to the council wanting to modify its existing arrangements?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

Amendment No. 233 requires that before the council complies with a ministerial request under clause 24(6) to give

''advice on any matter connected with a profession'', it must consult with that profession. I have several problems with the amendment, although I do not dispute the need for proper consultation. The obvious problem is that it does not describe the consultation process: does it mean a regulatory body or the individual members of a profession?

A practical problem with the amendment is that we envisage the UK council consulting regularly with other regulatory bodies, and, in some cases, the professional membership of those bodies, through consultation proposals, documents, meetings and conferences, which would be a legitimate way for it to go about its business. There is an obvious difficulty in placing on the face of the Bill a requirement to consult with the profession. Ministers might request information from the council and want it at necessarily short notice. They would be aware how these processes work and might require advice quickly about

professional regulation and self-regulation. If the council had to consult before it could give that advice it would not be an ideal situation for either Ministers or the council, which is something that the hon. Member for North-East Hertfordshire, who is a man of goodwill, will understand.

Amendment No. 234 removes one of the three changes that we proposed the Bill should make to section 60 of the Health Act 1999. Amendments Nos. 235 and 236 seek to change the definition of ''health care profession'' in clause 24. The hon. Member for Hexham (Mr. Atkinson) asked me about that definition, which is not new and relates to section 61(b) of the 1999 Act. I remember sitting through many hours of discussion and debate about the meaning of that term. He did not have that pleasure—perhaps I should send him copies of the bound volumes of Hansard so that he can flick through them at his leisure.

I am not disputing that amendments Nos. 235 and 236 have the ring of common sense. However, if we were to amend clause 24 in the way in which the hon. Member for North-East Hertfordshire has suggested, the clause would not cover professions such as psychology that are only partially concerned with health. Furthermore, the clause would not cover professions such as operating department practitioners, perfusionists or physiological measurement technicians, none of which are currently regulated. Depending on the advice that Ministers receive from the Health Professions Council, we want a situation in which we can extend regulation into those areas. In understand that his amendments are designed to probe the rationale behind these definitions and the reasons why they are drafted in this way. However, the definitions are deliberately drafted to allow for the possibility of an expanded regime of self-regulation in those areas.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I take issue with the Minister, and professionals such as psychologists would also take issue with him, in excluding their work from the definition of health. The World Health Organisation has offered a useful definition of health, and I am sure that he has heard it many times before. It would certainly include professions such as psychology, along with operating theatre technicians and a raft of people who work within the health service. The wording of the clause in relation to physical and mental health seems verbose. Nothing would be lost, indeed a great deal would be gained in terms of clarity, by deleting ''physical and mental'' because ''health'' is all-encompassing. The wording is unnecessarily complex, and most within health care would know what he meant were he to stick to ''health''.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

This is one of those occasions on which I must disagree with the hon. Gentleman. The amendments create further doubt as to what is and what is not regarded as a health care profession for these purposes. Including ''wholly or partly'' is designed to ensure that in areas where there is argument and potential doubt, we can ensure that we

are not inhibited from expanding the range of professional self-regulation. If we were to take the words out it would narrow the definition rather than expand it, and we should have an expansive definition rather than a narrow one.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I agree with the Minister's comments, as I did in 1999, on the need to expand professional self-regulation where appropriate. The danger of taking out the provision that there must be a physical or mental health component to the care given might be taken as a signal that we are opening the door to professional self-regulation to people who deal, as they would see it, purely with the spiritual side of health. As a minimum, we must further debate the primary legislation before giving a signal that we are going down that path.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

To be fair to the hon. Member for North-East Hertfordshire, he is not proposing the deletion of ''physical or mental health'' from the definition. He wants to delete:

''whether or not regulated by or by virtue of any enactment''.

Amendment No. 235 would confine the work of the council to bodies that are currently regulated, and not allow it to consider those that might be regulated in future. That would be daft because it would limit the efficacy of the council.

Amendment No. 236 would omit the words ''wholly or partly'', which are designed, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, to give us the greatest possible scope. We want to avoid rather than encourage arguments about whether professions are covered by the Bill.

Amendment No. 234 raises some different issues. The provision the amendment proposes to delete would give us the power in a future section 60 order to adjust the range of functions that fall within the remit of the council to those bodies that are both the regulatory and professional body for their profession. Currently the only such bodies are the Royal Pharmaceutical Society and the Pharmaceutical Society of Northern Ireland. Because of their unusual status, the council only bites on their regulatory functions, which is absolutely correct. This is a piece of flexibility that it is logical to include now, but we have no plans to use it.

The provisions that we are proposing in relation to section 60 are designed to preserve flexibility. The Bill currently gives us the power to alter the range of functions that fall within the remit of the council of those bodies that are both regulatory and professional. Because of that status, the council should have a competence and jurisdiction in relation to its regulatory functions. That is what the clause seeks to do, and I hope that that clarifies the position for the hon. Member for Hexham.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I feel that we have had a ''Titanic'' moment—there was more beneath the surface than I had realised. From what the Minister is saying, some groups or bodies that clause 23(3) proposes could

become part of the scheme in due course: bodies apart from the General Medical Council and the others on the list.

The Minister mentioned psychology and physiological measurement, but if there are several possible applicant groups that will be joining in the regulation, what will be the route for them to do so? Will the logical way be through the Health Professions Council? Can the Minister give us an idea of which bodies might be included? Are there groups requesting to be part of the Health Professions Council, who are they, and is a process underway to join them up, over a period of time, which I had not fully appreciated?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There are, and I tried to say which groups they were in an earlier debate. Psychologists have been pushing for a scheme of professional self-regulation for some time, and have been in discussion with Ministers about that. I remember meeting them about 18 months ago to discuss it. It is generally well known that operating department practitioners and perfusionists, examples that I have given previously, are also arguing for professional self-regulation.

We are trying to ensure that the UK council has the flexibility to deal with those organisations as and when they might become part, for example, of regulation through the Health Professions Council. It is through advice from the HPC that Ministers will come to decisions about the need for future regulation in those areas.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

That will happen only through the HPC, and it is not thought that any other groups out there would be likely to join. I cannot think of any, but there might be another general council of some sort that I have missed. That was helpful, but can the Minister drop me a line listing the main groups that he is currently aware of that might be future members of the HPC? I think that that might be helpful on Report.

I am still not quite clear what sort of advice the various bodies in clause 24(6) might seek from the council. It states:

''advice on any matter connected with a profession appearing to him or them to be a health care profession'', but some thought must have been given to what advice might be sought, and in what circumstances. Can the Minister give us some idea of what he has in mind? He mentioned short notice requests being necessary and those interfering with consultation, but I cannot think what circumstances this relates to. Might it be when a crisis occurs at a particular hospital, involving a particular profession, and the Minister suddenly wants urgent advice about regulation?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The hon. Gentleman's example is a situation that might occur. Others might come up from time to time.

I am not disputing with the hon. Gentleman the need for consultation with a profession. The UK council should be the body to undertake that on occasion and it is clear from its functions laid out in the Bill that it will have the opportunity to do that. My only dispute with him is that to require it, in the Bill, to consult before giving any advice to Ministers would be to include an unnecessary restriction. I do not think

that that would be a good idea because there must be efficient conduct of business between the council and Ministers.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I am grateful to the Minister for those replies. I hope that he might be able to write to me about the various applicant groups, and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24, as amended, ordered to stand part of the Bill.