Schedule 8

Health and Social Care Bill – in a Public Bill Committee at 12:00 pm on 22nd January 2008.

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Extension of powers under s. 60 of Health Act 1999

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment No. 89, in schedule 8, page 152, line 6, after ‘functions’, insert ‘pertaining to regulation’.

We reach another important issue. The Bill allows an Order in Council to transfer any of the functions of the Royal Pharmaceutical Society of Great Britain or the Pharmaceutical Society of Northern Ireland. The  amendment would limit that power to transferring functions pertaining to regulation. Currently, the regulation of pharmacy is shared by two bodies—the RPSGB and the PSNI. The Government have decided to split the functions of the RPSGB, leaving it with responsibilities for leadership within the profession and representation of the profession, as with the Royal Colleges, and transferring its role in regulating and inspecting pharmacy premises, pharmacists and pharmacy technicians to a new body, the general pharmaceutical council, as set out in paragraphs 1.29 to 1.36 of the White Paper, “Trust, Assurance and Safety”. As the explanatory notes put it:

“The RPSGB’s responsibilities towards pharmacists for professional leadership are potentially in conflict with its role as an independent regulator for the profession itself. The professions are taking on an increased clinical role in the treatment of patients, whereby pharmacists have the autonomy to prescribe potent drugs. Therefore, this dual responsibility does not provide sufficient reassurance to the public that there is effective independent regulation of this role. Separation of the regulatory system from that of professional and clinical leadership will allow each distinct function to focus solely on its core role...Amendments are required to section 60 of the Health Act 1999 to allow an Order made under that section to remove the statutory function of pharmacy regulation from the RPSGB and the PSNI and transfer these functions to the proposed General Pharmaceutical Council.”

That is the essence of what we are discussing here. My understanding is that the RPSGB is happy with the separation of functions, so we will not quibble with that. In its briefing, it notes that schedule 8 allows the transfer of

“all of the RPSGB’s functions” to the General Pharmaceutical Council. Throughout the discussions between the RPSGB and the Department of Health, it was understood by both parties that only the regulatory and directly associated functions would be transferred. The current wording would allow current or future Governments to strip all functions of a membership organisation and place them with an independent body that reports to Parliament. That would place the profession’s ability to form a professional body in the hands of a Government who could remove several functions from the new body and place them within the public sector. The RPSGB understands that the Government intend to set out in secondary legislation the functions that are to be removed. The Government have expressed the aim of extending the remit of that secondary legislation to include more than regulation. Therefore, we need to be clear whether they are trying to have it both ways, or whether there is some covert agenda that has not been fully exposed.

The RPSGB maintains that, as the Bill stands, subsequent secondary legislation could extend the remit further to include most of the activities undertaken by the RPSGB. Its concerns are supported by paragraph 329 of the explanatory notes, which states:

“The primary purpose of the inclusion of subsection (2A) is to ensure that these statutory functions, which are separate but connected to the regulation of individual practitioners, are brought within the scope of section 60, so that changes can be made across all of the RPSGB’s and the PSNI’s functions where necessary.”

That is the vital phraseology.

“For example, this will facilitate the transfer of all of the RPSGB’s and the PSNI’s (subject to a decision by Northern Ireland Ministers to proceed in this way) functions under these Acts to the proposed General Pharmaceutical Council which the Government intends to create in the future by a section 60 order.”

I want to emphasis this next point:

“However, it is also envisaged that these powers will be used to modernise the requirements in relation to pharmacy premises in particular.”

While the explanatory notes and the memorandum on delegated legislation suggest that the power will be used on regulatory functions only, there is no reflection of that and hence no limit to the Secretary of State’s power in the Bill. That seems particularly obtuse when our amendment would put it simply and succinctly. Settling that issue is important not only for clarity of legislation, but because there is real concern that if the Government wield that amount of power over the RPSGB, they will severely hamper the body’s ability to criticise the Government and represent its profession when the time comes.

The Government have given no reasons to the RPSGB as to why they want to create powers beyond the scope of transferring regulatory functions. While I should note that powers under section 60 are governed by the affirmative resolution, it is important that the legislation should be as tightly formed as possible. There is no reason for the open-endedness of the drafting here. I hope that the Minister will agree and accept that the amendment has been tabled both to clarify and to assist him and his Government to be consistent with their declared approach, which is not reflected in the drafting of the Bill.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health 12:15 pm, 22nd January 2008

I hope that my voice survives this debate. I should declare an interest here as a fellow of the Royal Pharmaceutical Society of Great Britain. It is a body to which I pay considerable sums each year. This measure has caused great concern. It is worth the Committee noting a little background. The Royal Pharmaceutical Society of Great Britain is unique among professional bodies, as it represents the profession and also regulates it. Sometimes those two functions have not sat easily side by side. Until fairly recently there was great resistance to changing, but it is clear from the way that modern regulation is going that a body with a high proportion of lay membership struggles to become an effective representative body. I stress that now, except in Luddite quarters, there is little or no opposition to the splitting of the functions.

There is concern, however, about which body is going to do what. Although the Bill deals only with the setting up of the General Pharmaceutical Council, the profession has also been vaguely promised that it can set up a body akin to a royal college, the shape of which is currently being consulted on in various ways. However, there have been few promises of any funding, and the Government have, in some ways rightly, taken a step back and said, “This is for the profession to decide.” Nevertheless, the joint working in past years means that some of the society’s functions have become intertwined. For example, the education department deals with the setting of standards, which falls neatly into the new GPhC’s remit, but also deals with other educational matters that are perhaps more relevant to a body akin to a royal college.

I shall not pretend that separating the functions of the two bodies will be easy, but it is not beyond the wit of man. It is only fair to the society and its members, at a time when the profession is faced with a White Paper, community pharmacists have just struggled with a large reclamation of money for category M products and people are not sure what plans the Government have for pharmacy, that there be far greater clarity about which roles are to be transferred to the GPhC and which are not. I support the amendment fully, because it would force the Government to come up with some device by which that process can be undertaken.

I am not always a fan of secondary powers, but a clear commitment to regulation or to putting a list of functions in the Bill on Report would be helpful. It would give the organisation the necessary clarity in transferring its regulatory powers to the GPhC by the allotted time. The process is complex; it is not as straightforward as just saying “These two departments will transfer to the GPhC and the others won’t.” I cannot see any reason why the Government would want to resist a change that would make the process more transparent at this early stage.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I have sympathy with the spirit behind the amendment, but our view is that it is based on a fundamental misunderstanding of the schedule. There is no possibility of any functions other than regulatory functions being transferred under the Bill. The scope of section 60 of the Health Act 1999, which the schedule is amending, is confined to regulation. It will therefore enable only functions relating to regulation to be transferred to the proposed new General Pharmaceutical Council. The schedule also confirms that an order under section 60 of the 1999 Act cannot be used to abolish either the RPSGB or the PSNI, as both have functions relating to matters other than professional regulation. I therefore urge the hon. Gentleman to withdraw the amendment.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

No. We have made our case and we will press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Division number 10 Nimrod Review — Statement — Schedule 8

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment No. 272, in schedule 8 , page 152, line 8, at end insert—

‘(1B) An Order in Council may not provide for any function conferred on the Privy Council, in relation to any profession to which section 60(2)(a) applies, to be exercised by a body other than the regulator of that profession.’.

I could not help noticing when you lifted your clipboard, Mr. Hood, that it says “shatterproof clipboard” at the bottom. The day that we get a Government acceptance on one of our amendments, it will shatter.

The provision clarifies how the Health Act 1999 can be amended using a section 60 order. Paragraph 4(4) of schedule 8 removes the restriction in the 1999 Act that prevents a section 60 order from being used to transfer functions exercised by the Privy Council to another person. The explanatory notes say that it is anticipated the powers under paragraph 4(4) will be used

“to transfer functions from the Privy Council to the regulatory bodies for the affected professions rather than to third parties”.

The amendment would allow such transfers to be made only to the regulator of the affected profession, and not to some other party. It would be helpful for the Minister to clarify to which other bodies he might anticipate transferring those functions or for what other reason the proposal should not be adopted. I had to double check earlier, because the hon. Lady said that she was going to press the amendment and I was baffled by that, although it was very nice to have her support.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

The hon. Gentleman made a slightly barbed remark at the outset about our reluctance to accept amendments. With regard to one of the earlier discussions about the requirement for a legally qualified chair, although I clearly indicated that we were going to address the matter, it was still pushed to a vote. I shall leave it there.

I imagine that the concerns behind the amendment are that the appointments functions of the Privy Council could at some point be transferred to individuals such as the Secretary of State. That would be an understandable concern, and I want to assure the Committee that there is no intention to undertake such a transfer. However, there are circumstances in which the appointments functions carried out by the Privy Council might be better carried out by a body other than itself or the regulator of the profession—the Appointments Commission, for example, which we have already discussed with regard to the appointment of members and chairs to those bodies.

Another example of the sort of flexibility that might be needed is with regard to the appointments of members of councils themselves. As I have said, at the moment, the Appointments Commission makes the Privy Council appointments under delegated powers, but in the future we might want to look at where the bodies in Scotland, Wales and Northern Ireland could have a role in relation to some of those appointments. Those are the reasons for the flexibility, and I hope that in the light of that, the hon. Gentleman will withdraw the amendment.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 12:30 pm, 22nd January 2008

I beg to move amendment No. 209, in schedule 8, page 152, line 9, leave out subparagraph (3) and insert—

‘( ) In sub-paragraph (2) after “practice”, insert “or be persons included in the register of members admitted to practice”.’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment No. 161, in schedule 8, page 152, leave out lines 9 to 12.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Amendment No. 209 is a probing amendment to clarify the Government’s intentions on the lay-professional balance on the councils. The Committee will recall that I made a similar distinction on the fitness to practise panels. Amendment No. 161 has the same probing purpose.

Amendment No. 209 would amend schedule 3 of the Health Act 1999. As it stands, the 1999 Act prevents the imposition of a lay majority on the regulatory bodies by secondary legislation. The amendment would ensure clarity of lay and professional members of the councils of regulatory bodies. The Bill will allow a lay majority to be imposed through secondary legislation, through a section 60 order, which is made by Her Majesty by Order in Council subject to the affirmative resolution. Under schedule 8, lay majorities could be imposed by secondary rather than primary legislation, as the current legislative framework requires. The GMC in particular argued for clarity in the evidence sessions as a way of strengthening independence from the Government, which is the dominant provider of health care in the UK, and from any single group. That independence is critical to ensure continuing confidence in the regulatory system, as we have discussed many times.

In the memorandum on delegated legislation, the Government note that the provision

“will allow councils of health professions bodies to have a lay majority, should they wish. It will be used as and when such councils request such a change”.

Will the Minister confirm whether the Government have taken a position on lay parity or majority? Will the councils truly be free to make such decisions themselves, or will the Government urge or coerce them? There is a valid concern that the Government are giving themselves the power in order to have something to do if and when there is another professional scandal—there may well be such a scandal. It is not our job to provide hooks by which the Government can say that they have done something when, in fact, the authority must rest with the panel that we are considering.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I tabled amendment No. 161 to tease out some of the Government’s thinking on lay members. I fully understand the public confidence arguments. The old regulatory bodies had very low lay representation—a token handful of members—which did not engender any sort of public confidence. The numbers of lay members on all regulatory bodies has increased significantly, and there is a lay voice, as it were.

However, to some extent, this is smokescreen approach. No attempt appears to have been made by anyone to assess the impact of lay members. Has decision making improved as a result of the greater proportion of lay members? Do the public have greater confidence in the system? Have they even noticed what is happening in professional regulation? Alternatively, is the measure  simply a sop to the chattering classes who like to talk about public representation on every board? I do not mean that pejoratively—I think there are many situations in which we would benefit from increased public involvement.

I was fully behind the concept of increased lay representation—I frequently challenged some in my own profession for being stuck in the mud on the issue. I thought that the patient voice would be more central, but, because of the nature of the people who are selected for such positions, I do not think that that aim has been achieved in the slightest, if it was ever an aim. Some lay members are extremely good; others come across as little more than professional committee sitters.

The selection of lay members and what they can bring to the process is an issue. For example, from talking to health professionals on various bodies about fitness to practise, I learned that some of them are yet to be convinced that lay members are necessarily a good thing. That is not, as I cynically thought, because lay members are harder on the health professionals. Often the reverse happens. The attitude that doctors, or whoever it might be, cover up for their colleagues is in the dark ages. The overriding aim of most health professionals who sit on a professional regulatory body is that the profession is seen in a good light. They do not want rotten apples in the barrel and to some extent they are harder on their colleagues than other people. That is why I ask whether there has been any change in decision making as a result of having lay members, and what assessment is being made of the effect they have had.

Lady Justice Smith said in her evidence that she wanted to enhance the lay voice. I think that that is absolutely right. We are required to produce an evidence base for many areas of policy these days, so I have three simple questions. What evidence is there that increased lay representation improves decision making? What assessment have the Government made of the impact of lay members and the potential impact of the lay majority? What attempt is made to balance the skills needed in an effective regulatory board?

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

We are trying to ensure that the councils of the health professional bodies can move to a lay majority should they wish to do so. Currently they cannot and to enable them to do so is a sensible freedom to give. The fact that osteopaths and opticians already do have or are moving towards lay majorities demonstrates that there is a desire among some people to do so.

In response to the hon. Lady’s question, experience of the involvement of lay members is positive. It is important to remind ourselves that the genesis of the legislation—the hon. Lady referred to Dame Janet Smith’s inquiries—is that public and patients need to be reassured that the professional regulatory bodies are not dominated by an in-built majority of professionals. That is a fundamental part of the Bill. All we are seeking to do is to ensure that there is parity on the professional bodies, which is I think supported by everybody except the British Medical Association, and that if some regulatory bodies wish to move to a majority, they can do so—at the moment they cannot. No one will force them to do it, but if that is what they want, they should have the freedom to do so. The impact of the amendments would be to take that away.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I have listened carefully to the Minister. As I said, it was a probing amendment and just to make sure the record is correct, I wish to state that I am grateful to the hon. Lady and her colleague, the hon. Member for Leeds, North-West, for adding their names to our amendment—No. 161. I mistakenly suggested that they should lay claim to that amendment. Considering what the Minister has said, if further issues need to be pursued, there will be more appropriate moments later.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I noted that the Minister did not respond to what the Government’s thinking was on the future of the balance. I think it was the Foster report that said that if the bodies moved to parity they would be reviewed in a few years, whereas if they decided on a lay majority they would be left alone for a while. That signals that the Government’s thinking was to try to move to lay majorities in all cases. Did the hon. Gentleman get that impression too?

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Perhaps not with the same distinct clarity that the hon. Lady seems to imply. It is always open to the Minister to jump up and interject at any point if he wishes to clarify something. I dare say that we will return to the matter so, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment No. 210, in schedule 8, page 152, line 19, leave out subparagraph (2) and insert—

‘( ) In sub-paragraph (2)(d) after first “to”, insert “the investigation of”.’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment No. 211, in schedule 8, page 152, line 23, after first ‘to’, insert ‘adjudication on’.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

We romp on. The Health Act 1999 specifies secondary legislation cannot be used to transfer core functions of the regulatory bodies to any other organisation, so the amendments seek to enshrine in legislation the investigation of the fitness to practise of their registrants as a core function of the GMC and GOC, and that the investigation function can be transferred to the OHPA or another body by recourse to primary legislation only.

Paragraph 8(2) of schedule 3 to the 1999 Act enshrines the four functions of the regulatory bodies as

“keeping the register of members admitted to practice, determining standards of education and training for admission to practice, giving advice about standards of conduct and performance, administering procedures (including making rules) relating to misconduct, unfitness to practise and similar matters.”

The fourth function, set out in paragraph 8(2)(d), relating to issues of unfitness to practise, consists of two separate but key activities: investigation of a doctor’s fitness to practise, and the adjudication by panels of individual cases. The argument for separating the two activities was set out in the fifth Shipman report and supported by the Government. However, to ensure that the separation  does not lead to the wholesale transfer of investigation as well as adjudication, the primary legislation should be explicit that one of the regulatory bodies’ core functions will remain the investigation of a registrant’s fitness to practise. That would also ensure the integrity of the four functions of the regulatory bodies.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

It is clear from the hon. Gentleman’s words that his concern is what I thought it probably would be: to prevent the order-making power being used to transfer the role of investigations to the OHPA. I entirely agree with that point. The transfer of investigatory powers would be utterly contrary to our reason for creating the body in the first place, and I can assure the Committee that we have no intention of doing so. However, it is important that we ensure to take the right powers now, so that we are able to make the transfers that the OHPA will need. The role of the GMC and the GOC, for example, is more than just the investigation of complaints. They must consider whether the allegations are

“an impairment of fitness to practise” against the standards that they have set; whether sufficient evidence can be obtained; whether a case needs to be referred to the OHPA for adjudication, or whether other action would sufficiently protect the public.

“Investigation” hardly covers the presentation of cases to the hearing panel. I think that Members will agree that that stretches “investigation” beyond its dictionary limits. Equally, although the OHPA has no role in carrying out investigations, its panels may, during the hearing, request the regulatory body to provide further information that might require additional investigation. One could argue that that could be defined as an investigatory function, although it is clearly part of OHPA’s role as an adjudicator.

Orders under section 60 have proved an effective means of keeping professional regulation up to date, and of responding both to changes and to public expectation of regulators. The process for section 60 orders requires public consultation on a draft of the proposed legislative changes, and the order is subject to the affirmative procedure. It seems highly unlikely that any attempt to transfer non-adjudication functions would survive such scrutiny, nor would we ever wish to attempt it. I hope that on the basis of those reassurances, the hon. Gentleman will feel free to withdraw his amendment.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to the Minister, particularly for the assurances that he has placed on the record. Of course, we would always be more comfortable if they were in the Bill, but they are clear from what he has said. He also prayed in aid the limits of dictionary definitions. As someone who is reluctantly addicted to The Daily Telegraph Saturday crossword, I can assure him that many dictionaries have very different limits on true meanings. On the basis of what he has put on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.