Health and Social Care Bill

Baroness Pitkeathley Excerpts

Monday 19th December 2011 Lords Chamber

[Baroness Pitkeathley]

My Lords, I am very sorry to take issue with the opinions of noble Lords with whom I usually agree most heartily. I remind the Committee of my role as chair of the Council for Healthcare Regulatory Excellence. I should make it clear that I am in no way taking issue with noble Lords' concerns about the practice of healthcare assistants, nor with the emphasis—given particularly by the noble Baroness—on the need for proper training. The only thing I take issue with is whether statutory regulation is the correct solution to the problem.

I am not aware of any body of evidence that demonstrates that the risks of future harm presented by the practice of healthcare assistants could not be successfully managed by the existing processes and governance systems if they were applied effectively. That is the point. Healthcare assistants are already supervised by other staff who have the professional responsibility to supervise them. As we have heard, they almost always work in supervised settings, with supervision usually being the responsibility of staff who are statutorily regulated. Statutorily regulated professionals have a responsibility to ensure that the staff whom they manage offer safe care, conduct themselves professionally and are delegated only tasks that are within their technical competence. For example, the Nursing and Midwifery Council’s code states:

“You must establish that anyone you delegate to is able to carry out your instructions … You must confirm that the outcome of any delegated task meets the required standards … You must make sure that everyone you are responsible for is supervised and supported”.

In other words, we already have in place a governance system to ensure that healthcare assistants work safely and with proper delegation, supervision and support from a statutorily regulated professional. Employers are required to ensure safe systems of work, which will include providing support in delegating and supervising effectively.

Creating a list of people is not in itself an effective safeguard. Effective regulatory conditions are often much closer to home. For example, in an environment that is poorly managed and distant from scrutiny, poor standards of care can become the norm, with staff being drawn into collusion with poor care. We have seen many examples of this recently, particularly of the process of collusion, with people working in a poorly managed environment unable to resist the downward spiral of standards. The most effective way to invert the spiral is by employers properly managing the specific environment, not by establishing another structure.

Winterbourne View was referred to several times in this short debate. Perhaps it is worth reminding noble Lords that registered professionals were involved in delivering poor care there. Statutory regulation did not prevent it. We should always bear that in mind. Regulation is not necessarily the answer. Further, we cannot ignore the fact that statutory regulation would be expensive and cumbersome for a large, low-paid workforce with a high annual turnover. It is not proportionate to the risk, which can be managed by effective training, delegation and supervision.

The recent announcement by the Secretary of State about improving standards of training and the potential to develop a voluntary register of healthcare assistants is encouraging. I also welcome the Nursing and Midwifery Council's announcement that it will fully engage with the project that the Secretary of State announced, and with any further developments around assured voluntary registration for this particularly valuable group in the healthcare workforce. It is important that we make sure that we value this group, who are of such importance in the front line of the nursing and patient care environment.

[Lord Warner]

My Lords, I am speaking because my name is also on this amendment. We need to reflect on several aspects relating to the context of this issue. I do not think that there is much doubt that we have a problem of some significance, or any doubt that the problem has been growing over a long time. I also do not think that it is an easy fix simply to jump to statutory regulation. I went through the process when the whole issue of regulating social workers arose, and that proved extremely difficult to introduce. I do not doubt that we will end up with statutory regulation of some kind, but we might have to go through some processes before we get to that point.

I do not want to duplicate the history that other noble Lords have put forward most expertly. I came into this story as a very young civil servant at the end of the 1960s when the Salmon committee was set up. Some noble Lords may be old enough to remember the Salmon committee—I was assistant secretary to the committee. This was in the days when civil servants could not hold a job for long and were moved on at a tremendous rate. While doing this work we saw how things worked at the ward level. In those good old days of the 1960s and early 1970s there was a ward sister, state-registered staff nurses, nursing auxiliaries and state-enrolled nurses. We also had a set of arrangements in which oversight of cleaning was largely the duty of the ward sister. Furthermore, bank working was not that common.

What has happened since those “good old days” is that hospitals have become used more intensively. Bank working has meant that there is a higher flow of different people moving through the wards, and the profession, with good reason, has wanted to make itself a graduate profession. The context has changed a lot, so the dynamics of those wards has changed quite a lot.

Alongside that we have been growing another industry in the community: in nursing homes, residential care homes and—not quite as fast as one would like, within the health service—a district nursing service. One of the problems in both these areas, whether acute hospitals or the community, is that with the demand of patients for services, and the demography which has gone alongside that shift in time, the qualified and registered nursing profession has inevitably had to look for help from sub-professional groups to help carry the load. In the community there is not a strong management structure to oversee this, so to some extent it is difficult for district nurses to oversee any work done by unqualified personnel. Such oversight might be the theory but in practice it will often be difficult to achieve.

Community services are burgeoning, the hospital service has changed, and we have a problem of a growing need for more people who are not qualified and registered nurses to work alongside such nurses to provide some of the care. We are looking to the Government to produce a comprehensive review that examines the situation that we face now rather than the situation we faced 10 or 15 years ago and which was very different.

I suspect that we will have to move by interim steps towards statutory registration, and perhaps voluntary registration is an interim step. However, I am not convinced that we have a comprehensive set of answers to a continuing and serious problem. The Government need to think about how they will deal with this very serious problem.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, this group of amendments is very interesting as it reveals the enormous number of people involved in healthcare who literally hold the lives of others in their hands and are not subject to any statutory regulation but are voluntarily registered. I have an amendment in this group which seeks to establish,

“a statutory register of Physicians’ Assistants (Anaesthesia)”

and of other healthcare professionals. I will speak about that in a moment in relation to clinical perfusion scientists.

Physicians’ assistants in anaesthesia already have a voluntary register in place and they applied to the Health Professions Council for registration and had their application accepted. However, that all went on hold with the emergence of this Bill. The Royal College of Anaesthetists does not allow physicians’ assistants in anaesthesia to become associates as they are not registered with the General Medical Council, but it permits them to have affiliate membership. However, the college does not have a regulatory role as such; it is tied up with education and standards.

Physicians’ assistants in anaesthesia urgently need statutory regulation, given the range of invasive, and potentially life-threatening, procedures that they perform and the knowledge and autonomy of practice required in the roles that they carry out. These practitioners perform tasks that, in the UK, were previously carried out only by doctors. They cannot get indemnity insurance for their practice or apply for prescribing rights, even though they sometimes have to be able to respond in a matter of seconds, not minutes, if something goes catastrophically wrong with an anaesthetised patient while the anaesthetist is outside the theatre for whatever reason. They are on a voluntary register, which provides some reassurance for patients and employers, but that cannot realistically be seen as an alternative to statutory regulation. I think that in 2009 they were identified by the Department of Health as being urgently in need of registration. The Health Professions Council felt that these assistants fulfilled sufficient of its criteria to warrant the recommendation for statutory regulation being accepted.

Irrespective of whether Members of this House have undergone a procedure requiring anaesthesia, would they consent to being rendered unconscious by an individual who was neither bound by a stringent professional code of conduct nor properly registered to practise? After all, we would not get into an aeroplane if we did not know that both the pilot and the co-pilot were appropriately qualified to a very high degree, with ongoing continuing professional registration. We trust them just as we trust these physicians’ assistants, but if something goes wrong in theatre it does so with catastrophic rapidity. When I did my training in anaesthesia, on more than one occasion I saw these physicians’ assistants recognise problems arising before the trainee anaesthetists had done so. They carry enormous responsibility during complex procedures.

I have included other healthcare professionals in my amendment as I am well aware that the Government do not like to have enormous lists in a Bill. My amendment would therefore leave the door open to include clinical perfusion scientists—the other group involved in theatre—whose role is primarily to maintain a patient’s circulation during open-heart surgery, during a period of surgical repair when the heart has been stopped. They were recommended in 2003 for statutory regulation.

There have been two high-profile cases involving clinical perfusion scientists. The first fatality, in 1999, led the Southwark coroner to recommend the immediate statutory regulation of clinical perfusion scientists. The second fatality, in 2005, was attributed to inappropriate drug administration by a clinical perfusion scientist during an operation on a five-month-old baby at Bristol Royal Infirmary. That led to the publication of the Gritten report, which concluded that:

“The incident occurred because of latent weakness that lay dormant for years hidden by healthcare professionals compensating for inadequacies within national and local systems”.

The report recommended that action at national level should include,

“regulation and guidance on perfusion practice in cardiopulmonary bypass”.

More recently, there have been fatalities that have led to clinical perfusion scientists’ actions being questioned by coroners—the most recent of these incidents occurring in 2010 at Nottingham City Hospital.

I do not want to scare people from going in for surgery and I do not want to scare Members of this House who may be going in for surgery, but in the current climate people need to know that these very critical roles are being undertaken by people who are on a voluntary register but do not enjoy indemnity, as they would if they were on a statutory register and subject to the rigours of being statutorily regulated.

[Baroness Pitkeathley]

My Lords, I do not want to sound like a broken record in always resisting more statutory regulation or in disagreeing with colleagues with whom I normally agree, but I want to emphasise the application of light-touch regulation. We should use only the minimum regulatory force to achieve the desired result. Therefore, we should be considering extending regulation only where the risks to patient safety and public protection are such that other mechanisms such as those I previously mentioned—employer’s guidance, clinical governance, appropriate delegation and multidisciplinary teamworking—are unable to manage those risks.

When the Council for Healthcare Regulatory Excellence becomes the Professional Standards Authority for Health and Social Care, it will be accrediting voluntary registers as a more proportionate and targeted approach to developing high standards of care for people working in health and social care who are not statutorily regulated. I remind your Lordships that statutory regulation can be expensive and it is important that we explore and develop a range of options for maintaining and improving the quality of care delivered by people working in health and social care. It may be more proportionate, for instance, to promote greater co-operation and sharing of good practice. We seek to find the most efficient and common-sense solutions to the kind of problems that your Lordships have identified.

[Baroness Oppenheim-Barnes]

What proportion of voluntary persons employed in operating theatres are expected to be affected? Is it not the case that the great proportion of them are specialists who are subject to statutory regulation?

[Baroness Pitkeathley]

Currently, a great proportion are in statutory regulation, given that voluntary regulation is being developed. The CHRE is currently working on that.