Health and Social Care Bill

Baroness Northover Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I, too, pay tribute to the noble Baroness, Lady Emerton, for her perseverance and determination in this very important area. Rather like the noble Lord, Lord Alderdice, I am clear that the role of healthcare assistants has to be seen in the context of a much more general debate about nursing care, including the compassion that he talked so eloquently about.

As the noble Baroness said to us rather earlier this afternoon, we had an excellent debate on nursing on 1 December, and we are presented with something of a paradox: on the one hand, we should not ignore the huge advances in the nursing profession over the past 20 years. There has been the move to a graduate profession and nurses have taken on much greater responsibility, including for complex care and specialist care, and I think that, overall, the public have welcomed that increased responsibility. At the same time, there has been real and mounting concern about basic standards of care and issues to do with hygiene, feeding of patients, nutrition, dignity and even face-to-face contact—the kind of compassion that the noble Lord, Lord Alderdice, has just spoken about. We have seen the reports from unannounced visits of various bodies. Recently, the CQC has undertaken important visits to many of our hospitals. There seems to be real evidence and concern about a falling of standards of basic care.

The reasons for that are not clear. It is possible that nurse training is now too focused on academic performance rather than on practical nurse training. It is also at least possible that the drive for specialist nurses and modern matrons has taken from the ward the many experienced nurses who, in retrospect, might be better placed in leading their ward as ward manager or senior sister. What is not in doubt is the need for serious thinking about how we can enhance the overall quality in standards of basic care that nurses give.

That brings us to the role of healthcare assistants. Again, in our debate on 1 December, the noble Earl, Lord Howe, in responding, referred to the concerns that had been expressed about nursing in the acute sector in particular. He said he felt that that,

“related to inappropriate delegation by nurses to healthcare”,

assistants. He continued:

“Wherever there is a multidisciplinary team of regulated professionals and unregulated healthcare workers, appropriate delegation and supervision is vitally important. This is an area ripe for formal review”.

He also said that the Government welcomed,

“the NMC’s plans to update its guidance on delegation”,

and that they have,

“asked Skills for Health and Skills for Care to accelerate production of a code of conduct”.—[Official Report, 1/12/11; col. 419.]

I am sure that those actions by the Government are very generally welcomed. The question before us is whether they are sufficient. From what the noble Baroness, Lady Emerton, has said, it is clear that she does not think that they are. Powerful support for that argument has been received from the Nursing and Midwifery Council, which argues that a system of regulation for healthcare support workers should contain provisions for consistent UK-wide standards of training and practice that would assure the public and employers that they have the knowledge and skills to practice safely. It further suggests a mandatory register to ensure that workers who have been struck off the nursing and midwifery register are not re-employed in a healthcare support role, which has been the subject of some concerns. It is also notable that the House of Commons Health Committee supports mandatory statutory regulation of healthcare assistants, which it believes is the only approach that would maximise public protection.

However, we have heard from my noble friend Lady Pitkeathley, chair of the Council for Healthcare Regulatory Excellence, who has put a different view. It will be interesting to hear the response of the noble Baroness, Lady Emerton, on why she thinks that a voluntary register for healthcare assistants is the way forward. I should like to ask her whether she would support NHS bodies which require healthcare assistants to be voluntarily registered as a condition of employment. If that were the case, what safeguards does she think could be put in place as regards a worker who was dismissed because of poor conduct towards a patient? How could we ensure that in those circumstances that person could not then work in another part of the care sector? That seems to me to go to the heart of the issue of whether a voluntary register could work.

I have no doubt that NHS employers could be encouraged to make it mandatory but the problem with that is that too many people could slip through the net. I would also ask the noble Baroness to respond to my noble friend Lord Warner. I share his view that, clearly, we are crying out for a fundamental review of these issues around nursing quality and care, compassion, and dignity of care being given to patients, and that relationship to healthcare assistants. If the Government are not prepared to move on this and on the point about only going as far as a voluntary register, can they at least give some comfort and assurance that they recognise that this matter needs close attention?

I am not a great believer in royal commissions—I think it was Harold Wilson who said that they could be established in a minute but take years—but there is a strong case for a fundamental review of the nursing profession, embracing healthcare assistants. Would the Government be prepared to give us some comfort on this?

[Baroness Northover]

My Lords, these amendments seek to extend compulsory statutory regulation to healthcare support workers. I thank noble Lords for the amendments because they raise important issues about the ways in which we assure the quality and safety of those who work in support of our regulated health professionals. The Government are publishing a fact sheet on this issue that will contain further details about their proposals, which I hope will be helpful to noble Lords.

There are more than 200,000 nursing assistants and approximately a further 1 million people working in similar jobs in adult social care in England alone. The majority of support workers give the highest quality of care. However, a minority let patients down. This is rightly a cause for concern, although as a former historian I have to say that I do not fully recognise the notion of everything having been perfect in earlier periods but everything breaking down at this point. One needs only to look at what has been said from Florence Nightingale onwards about what happened during the interwar periods, during times of war and so on. This has always been more varied than perhaps noble Lords are allowing for. Nevertheless, it is extremely important that we try to drive up quality and ensure that quality holds good right across the health service and social care. It is right that there is discussion and debate about the best way of ensuring that high standards of care are delivered at all times.

As the noble Baroness, Lady Pitkeathley, pointed out, there are already existing tiers of regulation that protect patients and service users. Professionals struck off by their regulator or sacked by an employer who pose a risk to vulnerable adults or children should be referred to the Independent Safeguarding Authority, which has been very clear that it expects this to happen. In the same way, employers should make referrals about individuals from unregulated groups where they pose a risk of harm to vulnerable adults or children. Providers and employers also play a key role in ensuring safe, high quality care that patients and service users can be confident in, being both responsible and accountable for the staff they employ. Under the registration requirements of the Care Quality Commission, providers must take steps to ensure that at all times there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purpose of carrying on any regulated activity.

An individual being on a list does not alter this and would not remove employers’ responsibility to undertake a range of checks on the suitability of any persons who they appoint, including qualifications, relevant registrations, employment history and reference checks to ensure that an individual is competent for a specific role. Equally, appropriate delegation and supervision is a necessity within teams made up of both regulated and unregulated professionals and workers. Guidance by the Nursing and Midwifery Council is being updated so that nursing staff know how to delegate appropriately and safely.

We are not ruling out compulsory statutory regulation for healthcare support workers, but our view is that the case has not yet been made for imposing further compulsory statutory regulation, given the tiers of existing regulation and the duties on regulated professionals. There is no solid evidence that demonstrates that healthcare support workers and adult social care workers should be subject to compulsory statutory regulation. Research by King’s College London concluded that little evidence could be deployed to show that regulation of healthcare support workers would reduce the risk to the public, although it was clear that some healthcare workers were undertaking roles that had traditionally been done by nurses. The point is that quality is not always what is delivered. Therefore, we have to try to tackle that concern and not simply assume that regulation will deal with it. As the noble Baroness, Lady Pitkeathley, mentioned, there are regulated professions which are in some instances letting us down. We must focus on the real problem and figure out ways of tackling it.

The Government’s view is that high standards for healthcare support workers and other professional occupational groups can be assured without imposing compulsory statutory regulation. That is why, in the wider context of supporting providers, we are creating through the Bill a system of external quality assurance for voluntary registers. To pick up the point made by the noble Lord, Lord MacKenzie, there are various examples of voluntary registration for groups of professionals. We are proposing a quality-assured voluntary approach, looking at how those registers are set up and operated and what training is offered and so on. A quality-assured voluntary register will set standards for training, conduct, competence and ethics that all registrants must meet.

[Lord Hunt of Kings Heath]

My Lords, if the Government are putting so much faith in the quality-assured voluntary register, surely the evidence from King’s College would show that that was not necessary. They cannot have it both ways. Either regulation, and what comes with it, provides advantages or it does not.

[Baroness Northover]

Regulation and training are often put as two words in one sentence. Regulation may indeed include training; assured voluntary registers may also include training. The noble Baroness, Lady Emerton, talked about that. Perhaps I may come on to it, because it is potentially relevant here.

I am particularly grateful to the noble Baroness for her contribution to this debate, not only today but throughout her time in the House of Lords. We agree that common standards of training are needed for those working in both health and social care, as well as more role-specific training, and that this will lead to a more capable and flexible group of support workers. As we seek to integrate health and social care more effectively, this area deserves a lot of scrutiny.

We expect work on the standards to begin by April 2012 in terms of training, and for them to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013. This will allow unregulated workers to demonstrate that they meet a set of minimum standards for training and are committed to a code of conduct.

[Lord Hunt of Kings Heath]

My Lords, I still do not understand this. If it is so important that the voluntary registers are established, for the reasons that the Minister has given, why on earth not go the full hog and make registration compulsory? If the Government do not think that it is important, they would not be pursuing the voluntary register approach. However, by taking that approach, they will leave lots of people outside the net.

[Baroness Northover]

As the noble Baroness, Lady Pitkeathley, and others have indicated, one has to be proportionate about this and not think that simply going down the route of regulation is going to crack it. Nevertheless, training and making sure that people are well prepared for the work that they are doing is clearly of great importance. We would expect a voluntary register, quality assured in the way that I have described, to provide a way for employers to assure what they are offering in terms of staff. There will therefore be greater take-up. Those who are on the quality-assured register will find themselves more employable, which will move things forward. Meanwhile, if, as we continue to debate this, voluntary registration does not seem sufficient and regulation seems the route to go down, the Government do not rule that out. However, it is extremely important to focus on the end point, which is to try to drive up quality, and not simply be deflected by thinking that this would crack it.

I assure noble Lords that we will keep this issue under constant review. We are well aware of people’s concerns and that standards need to be driven up in a much more even way across the board. As I say, we are developing the education and training which I hope will go some way towards this.

[Lord Patel]

I wish to pick up on one point. Can the noble Baroness reassure us on what it is she will keep under constant review? I understood her to say that the Government will rely on employers to ensure that these support workers have some kind of training. There will be no national training standards and, once the employers are satisfied that these people have some kind of training, they will be entitled to go on a voluntary register. As I understand it, the logical thing here is first to establish a national standard of training; then to ensure that those national standards are implemented; and then to allow people to register. If they register, the next step would be regulation. The first step is not immediate regulation but national standards of training and assessment that those standards are being met, before people can go through any kind of registration. What is the noble Baroness agreeing to keep under review?

[Baroness Northover]

I should perhaps explain that more precisely. This issue will be constantly under review so that if there are concerns in this area they will be flagged up. The Government will of course continually consider how best to respond and make sure that standards are of the quality that we need. The noble Lord is right: national standards of training are indeed the start. Then people are admitted to a register and so on. A voluntary-assured register would demand that kind of national level of standards in training. I hope that in that regard I can at least reassure the noble Lord.

[Lord Warner]

One question has puzzled me more and more as the noble Baroness has progressed. My noble friend Lady Pitkeathley laid great stress on the position of the regulated nurses and the fact that they will have to ensure that people working in the healthcare assistant type of roles under their supervision do not take on roles that they are not competent to fulfil. Going back to my description of the way the NHS works in reality, particularly in acute hospitals, there is a constant flow of different people on these wards—regulated and registered staff, agency or bank staff, are there particularly in the evenings, for unsocial hours and at weekends. We have heard a lot about employers. I am still puzzled about how the statutory regulated nurses satisfy themselves about the competence of the healthcare assistants working under their direction. They seem to be the people most exposed—at least theoretically—to cop it from their regulatory body if they have not made extensive inquiries about the competence of these healthcare assistants. How does the noble Baroness square that particular circle if we do not have much knowledge of the training of these people and they have not even registered on a voluntary basis?

[Baroness Northover]

The noble Lord will be familiar with being on wards at changeover time and when there is a pooling of information about who is on the ward and what the problems are. Issues are flagged up and one team passes information on to the next.

[Lord Warner]

I have seen changeovers at weekends, when visiting relatives. It is not a pretty sight.

--- Later in debate ---

[Baroness Northover]

I have seen many, many changeovers. The proposal is being brought forward so that registered, regulated nurses have a better idea of when and how to delegate, and that is extremely important for the reasons that the noble Lord has just indicated. As I have indicated, the training and national standards of healthcare workers, to which the noble Lord, Lord Patel, referred, are also important—as is taking that forward so that the registered nurses are aware of the kind of training that those healthcare workers have had. I want to pick up on the case that the noble Baroness, Lady Emerton, mentioned about the healthcare worker who was taking a patient’s blood pressure but did not know what the reading meant. Surely, it was for the person to whom that was reported to take action on the significance of that. That information was to be passed on to somebody else to read, understand and interpret.

[Lord MacKenzie of Culkein]

But if that healthcare assistant does not have the basic training or an understanding of the reading that she or he has just taken, they may not see the importance of reporting it to another nurse.

[Baroness Northover]

I am not suggesting that they would. What I am suggesting is that the registered nurse might go and check the chart.

[Baroness Emerton]

My Lords, perhaps I could be helpful at this stage. I am grateful to noble Lords who have contributed to this debate. A large number of issues have been brought forward; I shall start with the title “nurse”. As noble Lords have mentioned, a person who is nursed—and feels that they have been nursed—experiences care, compassion, respect and dignity. There has been a lot of discussion among the public, and indeed in this House, about registered nurses becoming graduates and whether they will be too posh to wash, to put it colloquially. To me, a nurse who is a graduate would be only too grateful to be able to attend to the basic needs of patients, because that is part of holistic care. When you do various intimate things for patients, you learn a great deal about their condition.

The point that has been raised about the nurse is very important. We talk about support workers but we cannot talk about support nurses, because the term “nurse” is completely left for the statutory requirement of a regulated nurse. We are looking for a support worker who is able to do tasks which they understand, with the skills of the graduate nurse—because by 2013, we will be producing all-graduate nurses—within holistic care. That is the point I was trying to make this morning: it is the holistic care we are looking for in the delivery of care. However, it is not only holistic care in the acute sector; we are looking at the holistic care which is integrated with social care, because we are now looking at patients going into the community. Indeed, people working in the acute sector need to understand that the patients they are discharging are going into the community, which is a different scene and which may require not only a nurse but social care support. Therefore, somewhere in our education we need to bring together a basic core of understanding healthcare, nursing care and social care.

The point that the noble Lord, Lord Warner, made is very important. We need to conduct this review. On the other hand, the research evidence shows us that as regards highly qualified registered staff, the higher the proportion, the less likely it is that patients will have a longer stay in hospital. They will have a better clinical outcome. I hope that the Government are not going to ignore that research. If possible, we should carry out a truly safe cost-benefit analysis into increasing the number of trained staff, seeing where they are needed, rather than having a higher proportion of support workers.

The Royal College of Nursing has been resolute in putting forward the regulation of healthcare support workers because it feels that that is the way to ensure that they are answerable to a registered nurse. We talk about employers but I am not sure who the employers are going to be—social workers, managers or the nursing profession. This whole issue needs to be taken away and looked at, and perhaps we could return to it. I do not know whether these comments are helpful but I feel strongly about this issue, as noble Lords may have gathered. I pass it back to the Minister.

[Baroness Northover]

I hear what the noble Baroness says. She is extremely well informed, as ever, and I hope that she will continue to engage as we take this forward, as she has done up to now. However, at this point I hope that she will withdraw her amendment.

[Baroness Emerton]

My Lords, I am prepared to withdraw but we will probably come back to this on Report. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord MacKenzie of Culkein]

My Lords, I support this group of amendments. I want to make just a couple of points, as I think that most of the others have already been covered.

I am looking at some information sent in an open letter from the Registration Council for Clinical Physiologists to Anne Milton, the Parliamentary Under-Secretary of State in another place. Interestingly, in that open letter the registration council, which operates a voluntary register, takes the view that the council is rather toothless. It says that the professions covered by clinical physiologists will continue to be,

“saddled with a toothless system of voluntary registration, in which those managing the registers are exposed to unacceptable legal risk when attempting to enforce the meagre sanctions at their disposal and maintain professional standards”.

It says it is evident that those administering the current inadequate voluntary registration process are being threatened with civil action by those whom they are forced to reprimand. It is a pretty poor state of affairs when those who are trying to enforce professional standards are themselves threatened with legal action.

I know from talking to people involved with the registration council that people leave the register when disciplinary issues come to the fore. I gather that in one instance a person left the register when faced with discipline, emigrated to Australia, continued to practise and got in trouble there. As I understand it, the Australian statutory body that exists for clinical physiologists was astonished to discover that there was no statutory regulation in force in this country.

I do not think that we can continue with this so-called voluntary system and light touch. We need to do what other countries do and have statutory responsibilities and statutory training and registration for these very important groups of staff.

[Baroness Northover]

My Lords, these amendments seek to extend compulsory statutory regulation to physicians’ assistants in anaesthesia and clinical physiologists and to make changes to legislation to further provide for the compulsory statutory regulation of clinical physiologists.

I make it clear at the start that healthcare scientists such as clinical physiologists play an important and highly valued role as part of clinical teams, and this is also true of physicians’ assistants. It is a testament to their professionalism that the Department of Health is not aware of any general concerns about the standards of practice of either group. Furthermore, we need to be absolutely clear that the purpose of regulation is to protect the public, not to support the development of a profession.

Given the wider systems of assurance in place such as the Care Quality Commission’s registration requirements, and the vetting and barring scheme, the Government do not consider that the case for compulsory statutory regulation of these groups of healthcare scientists not already subject to regulation, and physicians’ assistants, has been made. However, we agree that there need to be processes to ensure high standards of care, and assured voluntary registration overseen by the Professional Standards Authority for Health and Social Care has the potential to provide this. It will ensure that there are robust standards of conduct and training. It will be open to employers and commissioners to insist on only recruiting staff on voluntary registers. Those doing so would secure many of the benefits of compulsory regulation. Both healthcare scientists and physicians’ assistants already have established voluntary registers and would be well placed to seek accreditation from the authority.

The noble Baroness, Lady Thornton, asked why we were not taking forward the regulation of clinical physiologists as recommended by the Health Professions Council. The recommendations of the Health Professions Council were not based on an assessment of the risk presented by a profession, but rather on whether that profession had already developed processes of assurance which prepared them for professional regulation. There is therefore no evidence that compulsory statutory regulation is necessary to mitigate the risks posed by the professions recommended for such regulation by the Health Professions Council. This is probably why the previous Government did not decide to regulate, although this is an issue that has been flagged up for a number of years. The professions recommended by the Health Professions Council for compulsory statutory regulation will be well placed to join the system of assured voluntary registration that we are proposing.

The noble Baroness, Lady Thornton, asked about research in terms of regulating clinical physiologists. We are not planning on commissioning research into the case for regulating them, but we will review the case for introducing compulsory statutory regulation for clinical physiologists and, obviously, others in the light of experience of assured voluntary registration, and the evidence about risks available.

[Baroness Thornton]

Perhaps the Minister could tell us what sort of timescale she envisages for this, or whether it will have to wait until an accident happens like the noble Baroness, Lady Finlay, recorded and then the Government will deal with it.

[Baroness Northover]

The noble Baroness will be fully aware, because she was a health Minister, that if there is no evidence of there being a risk then you do not choose to regulate. That is presumably why the previous Government chose not to.

The noble Baroness, Lady Finlay, flagged up the position of anaesthetists’ assistants. I had interesting discussions yesterday with an anaesthetist and an anaesthetist’s assistant, and it was very enlightening. As the noble Baroness will know, the anaesthetist is of course ultimately responsible. Assistants must always be supervised by a consultant who needs to be available within two minutes. The issue that the noble Baroness raises is one of quality assurance. As she knows, the Royal College of Anaesthetists runs the training and the registration for those assistants. After they have done a science degree, generally it is 27 months of practice. If the Royal College of Anaesthetists judges that that is inadequate, on the basis of the kind of concerns that the noble Baroness raises, then it is clearly for it to say that there are risks, it has encountered risks, and that needs to be addressed. If this system comes under the quality assurance system that I mentioned earlier, there will be another body looking at whether that kind of training, assurance and registration is adequate. However, there have not been cases flagged up as causing concern. I also point out that there are few anaesthetists’ assistants. They are more generally used in other countries, I gather, but not so much in the United Kingdom. The noble Lord, Lord Alderdice, asked why there is not more statutory regulation. In some ways I think I have addressed that. Although compulsory statutory regulation is sometimes necessary, one has to look at the risks and at what is proportionate.

[Baroness Thornton]

The health Minister Anne Milton said that those professions in which a patient safety case can be made, including that of clinical physiologists, will be considered for statutory regulation subject to a cost-benefit risk analysis. Will the Government carry out that analysis and, if so, when and in what time? I do not particularly want an answer about what my Government may or may not have done or may or may not have decided. The noble Baroness’s own Minister has pronounced on this matter since the general election so it seems to me that she needs to answer the question: when will they do the risk analysis?

[Baroness Northover]

I have already mentioned to the noble Baroness—she is probably totally familiar with this—that the Department of Health does not have evidence of there being a risk in this regard. Clearly, as I mentioned on the earlier group, these issues will always be kept under review. If the concerns that she has flagged up and if the association, which is particularly encouraging the regulation of clinical physiologists—that is fine; it is all part of professionalisation—flags up particular concerns that emerge from other evidence, then of course the department will take that very seriously. However, things need to be proportionate.

[Baroness Finlay of Llandaff]

I have listened very carefully to what has been said about the assistants relating to anaesthesia, but I also used the more catch-all phrase about the clinical perfusion scientists. I would be grateful if, after this debate, the noble Baroness would write to me and explain why coroner recommendations in relation to clinical perfusion scientists are not considered to be enough of a risk to take action. If one is trying to assess this on a risk spectrum, it would be helpful to understand why a coroner's decision to recommend that this small, contained group of clinical perfusion scientists should be regulated does not constitute enough of a risk to go down that route to regulate them and to have them on a statutory register.

[Baroness Northover]

I am very happy to take away what the noble Baroness has said and to discuss the situation further with her.

We expect the assured voluntary registration to be up and running by 2012. Therefore, afterwards that would need to be assessed to see whether anything further is required, as noble Lords have figured might be the case. We are hoping to see how it all works.

The noble Lord, Lord Walton, flagged up various groups which were regulated and he could not quite see why others were not. Given that I used to bump into the noble Lord, Lord Walton, in the Wellcome Library for the History and Understanding of Medicine, I think he will fully understand that the way in which regulation has grown up has not necessarily been logical or consistent. Therefore, I flag up the 2005 Hampton review on regulation which says that it should be proportionate to the risks that it seeks to mitigate and various other provisions. That is what we are seeking to do. Of course, we shall keep under review what we are doing to see whether it is adequate. In the mean time, I hope that the noble Baroness will be willing to withdraw the amendment.

[Baroness Thornton]

My Lords, I thank the Minister, but this is not yet a satisfactory situation. We might be moving towards one but we are not there by any means. If I were on the register of clinical physiologists I would find it slightly offensive for the Minister to suggest that I was asking for statutory regulation as a kind of professional development of the organisation. Physiologists are very clear in all of their briefings that they think that this is important for patient safety. That is why they want statutory regulation and that is why we need to listen to them very carefully.

[Baroness Northover]

I am extremely happy to acknowledge that.

[Baroness Thornton]

I thank the noble Baroness for that. The noble Baroness, Lady Finlay, made a graphic and powerful case. I thank my noble friend Lord Rea, the noble Baroness, Lady Masham, and the noble Lord, Lord Walton, for their support for the amendment. My noble friend Lady Pitkeathley and the Minister are coming at it from a different point of view. It is entirely possible that an arbitrary decision was taken, quite possibly by my Government, that there was enough statutory regulation. It is possible that this Government need to think that that was an arbitrary decision in the history of regulation and that exceptions need to be made.

There are questions about the limits of assured voluntary registration. Do clinical physiologists carry out invasive procedures that could harm patients? Yes, they do. Are clinical physiologists incentivised to join the voluntary register? No, they are not. A small number of NHS and private employers notionally require applicants to be on their register but there is no mandatory requirement for this. Are professionals incentivised to maintain the voluntary register? No, their activities are carried out on a voluntary basis by the chair and other officers. Does the voluntary register empower patients to make formal complaints? No. While the Health Professions Council operates a system whereby anyone can make a complaint about the fitness to practise of a professional on its register, in most instances members of the public are not aware of the existence of voluntary registers. Finally, does the voluntary register have any powers of enforcement? No, it does not. The RCCP operates a disciplinary code and procedure but it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. I beg leave to withdraw the amendment.