Health and Social Care Bill

Earl Howe Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.

This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.

Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.

Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.

There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.

We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards 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 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.

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[Lord Newton of Braintree]

Will my noble friend give way just briefly? I was at the other end of the Chamber, but I have shifted ends. Leaving aside the point about tracking, on the point about whether there will be one or more register I am conscious that, in the area of ombudsmen, there is experience of rival ombudsmen. Frankly, especially since it is in the choice of the provider not the customer, the providers go to the one who they think will give them the easiest ride. I do not want to see that situation here. Serious consideration needs to be given by whatever means to making sure that, if there is a voluntary register, it is one register and not a choice between a good one, a bad one and an indifferent one.

[Earl Howe]

The key here lies in the standards and the training. If we have standards laid down that are uniform across the piece, I am not sure that having more than one register is a significant issue. As I said, this is something that the professional standards authority is bound to take account of when deciding whether to accredit another register.

The noble Lord, Lord MacKenzie, expressed the view that voluntary registration does not work. The Government’s proposals are for assured voluntary registration. We believe that the effective assurance of the standards of healthcare support workers can be delivered by an assured voluntary register that is underpinned by clear standards of conduct and training and supported by the Nursing and Midwifery Council’s updated guidance on delegation.

The noble Baroness, Lady Finlay, asked how standards will be monitored. We will expect the professional standards authority to assure that any standards set for a voluntary register are appropriate as part of its initial accreditation process. It will keep the operation of any register under review and we will expect it to set out any concerns that it has about standards. The authority will also have powers to remove the accreditation of registers if any of its concerns are not addressed in a timely fashion.

The noble Lord, Lord Patel, asked what criteria would apply in individual cases. In its council paper, Voluntary Registers—Proposed Model for the Accreditation Scheme, the CHRE has stated that all voluntary registers seeking accreditation will be required to complete a risk assessment tool that will assess the risks inherent in a profession’s practice and the means by which those risks are and could be managed. The authority will also keep under review the management of risks by an accredited register. That will be part of its role.

However, having listened to the concerns raised in this House, the Government have given further consideration to this whole issue. Once a system of assured voluntary registration has been established for this group and has been operational for three years, to enable it to demonstrate its effectiveness the Government will commission a strategic review of the relative benefits of assured voluntary registration compared with statutory regulation. The review will involve all relevant professional bodies and trade unions. Such a review would include consideration of any further measures needed to assure the safety of patients and the public, including consideration of the case for compulsory statutory regulation or—and I say this in particular to the noble Lords, Lord Kakkar and Lord Hunt—making standards of training mandatory for employers through the use of standing rules for the NHS Commissioning Board and standard contracts for providers.

The noble Lord, Lord Kakkar, raised what I thought was a very astute point about the NHS standard contract. I can confirm that, yes, the Secretary of State will have the power to include in the standard contract the fact that relevant workers must be on a particular voluntary register. We see this as a strong lever, and we would want to consider it very carefully before deciding to use it in a particular instance, but wherever there was clear and demonstrable evidence that doing so would ensure quality of care, we would give it very serious consideration.

I can confirm that the question of whether to move to statutory regulation will be viewed openly, with full consideration of the potential benefits that it might be able to bring. I can say to my noble friend Lord Newton once again that the power to introduce statutory regulation already exists, in Section 60 of the Health Act, if a decision were to be made to deploy it. The Law Commission is in fact consulting at the moment on an even broader regulation-making power in the future. In the mean time, we are committed to exploring the evidence base on ratios of qualified to non-qualified staff. I totally agree with the noble Baroness that this is a key point. We will look carefully at the evidence from ongoing work by King’s College.

I have tried to set out what one might term, picking up a phrase from the noble Lord, Lord Patel, the direction of travel here. I hope that the noble Baroness, Lady Emerton, will understand our commitment to seeing defined standards and improved skills in the healthcare support workforce. The noble Baroness, Lady Masham, asked whether it is not time to have better safeguards in place. Yes, it is. I agree with her. Where we part company is on what a set of new safeguards should be. I strongly feel that a combination of voluntary registration and training is the more appropriate and proportionate solution to what I agree is a problem that needs to be addressed. The work that we have commissioned takes us on that road.

I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care support workers, and that, perhaps with reservations but nevertheless more confidently than before, the noble Baroness—

[Baroness Wall of New Barnet]

I have listened carefully to what the noble Earl has said and there are two areas that he has hardly mentioned—indeed, he has not mentioned one at all—but which he should perhaps refer to. What consideration has he given to the fact that, if you talk to healthcare assistants—and I mean literally hundreds of them—you find that they want this qualification and registration to illustrate the value that they have not just to themselves but also to colleagues around their hospitals? This is also the case for patients: if you do any survey of patients, they say that they want healthcare workers to be registered, so that they understand and have the assurance of that. I wonder how much consideration of those factors has gone into the deliberations that he is talking about.

[Earl Howe]

I apologise to the noble Baroness for not covering that point. We are well aware of precisely that view among the workforce. With the creation of a voluntary register, the process that she refers to will gather its own momentum because people will see the opportunities open to them to accord themselves the status that they clearly crave. It is important, from the point of view of the patient, that hospitals—and, indeed, care homes—are employing people of a certain standard of accreditation and skill. I think, therefore, that this will be self-fuelling and I hope that, once the register is on offer, substantial numbers of healthcare support workers will be encouraged to join it.

[Lord Quirk]

I wonder whether the noble Earl could address the point made by the noble Baroness, Lady Howarth, about social workers as distinct from health workers in this group.

[Earl Howe]

The noble Baroness, Lady Howarth, was, of course, quite right, because we have a mix of skills in so many settings. I did not share her view that, if I can put it this way, the skills of social workers were being belittled by the noble Baroness, Lady Emerton—not at all. She was, however, right to point out that the role of social workers can be just as critical for the well-being of patients and service users as the role of a healthcare assistant. We should not automatically think of these skills as medical skills; they are, in many cases, wider than that. We recognise that there are two distinct groups of workers here—that is the reason why we have asked Skills for Health and Skills for Care to work together to define standards of training. Despite the differences between the groups, there will be similarities; we want to tease out what those are and to define them accordingly. I hope that this is helpful. I hope, too, that the noble Baroness will be reassured and feel able to withdraw her amendment.

[Baroness Emerton]

My Lords, first, I thank all noble Lords who have participated in the debate this morning. It has highlighted and pinpointed one of the essential needs that must be addressed very quickly in terms of the future of the health service. The noble Lord, Lord Hunt, said that he thought that I had probably put down the amendment as it was worded in order to raise a debate. He was right—I was concerned to get a debate raised on the whole issue. It is unfortunate that despite the Bill’s title—the Health and Social Care Bill—social care has not been included yet. We know, however, that social care will come, and I have been a great supporter of mentioning support workers as we have gone through the various briefings. I take the point made by my noble friend Lady Howarth that social workers are just as important as the healthcare support workers. However, I had to draw a line somewhere as to the title of the debate and how we moved it forward, and I thank noble Lords for their contributions.

I have listened very carefully to what has been said, including by the noble Earl, Lord Howe. If I have heard correctly, I think that he has given a reassurance and a commitment about how things might emerge in the next few months in terms of developing the care standards for the training. He has also given an assurance that there will be a review later on, after the establishment of the training, as to whether statutory regulation would be possible or whether voluntary registration had been satisfactory. The noble Earl knows that we have been waiting a very long time for the examination of the regulation of healthcare support workers. I will take away what he has said and I will read very carefully in Hansard what has been said—a lot has been said in nearly two hours of debate—but, for today, I will withdraw the amendment.

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[Lord Rea]

My Lords, Amendments 253, 254 and 255 concern various clinical scientists, particularly clinical physiologists. In Committee, I declared an interest in that I have received skilled care from clinical physiologists for nearly five years in monitoring my pacemaker. From 2008 to 2010, when the previous Government were in office, I asked four Questions for Written Answer, pointing out that the Health Professions Council had recommended in 2004 that clinical scientists be included in its regulatory regime. This recommendation was accepted by the Secretary of State at the time. The Answers that I received respectively from my noble friends Lady Thornton and Lord Darzi said, in impeccable ministerial speak, “This will be done not this year, perhaps next year, but certainly some time”. However, the noble Earl, Lord Howe, suggested in Committee that it would be sufficient to continue the voluntary registration scheme that exists now.

Perhaps I may read a small extract from a note sent to me by the Registration Council for Clinical Physiologists, which compiles a voluntary register. The council states that it has,

“substantial evidence suggesting that voluntary self-regulation is not effective for clinical physiologists. Our register has no power of enforcement and is completely toothless because it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. Where a complaint is made and upheld about a practitioner, he or she usually ‘disappears’ from the voluntary register, which means it is impossible for the RCCP to do further investigations, while the practitioners under investigation are able to find employment elsewhere”.

The noble Baroness, Lady Finlay, gave an example of precisely that. Surely that should not be allowed to continue, and I hope that the noble Earl will reconsider his position and agree that statutory registration is the way forward for this very important group of skilled health professionals.

[Earl Howe]

My Lords, the amendments deal with two discrete areas. The first set of amendments relates to our proposal to establish a system of assured voluntary registration and seeks to extend compulsory statutory regulation to clinical perfusionists and clinical physiologists, and to make further amendments to legislation to account for this.

The second set relates to the transfer of the regulation of social workers in England from the General Social Care Council to the Health Professions Council, to the protection of the function of social workers, to the office of the chief social worker and to the approval of the training of best-interests assessors. Also included in this second group is a minor and technical government amendment intended to correct an inconsistency in drafting.

As for assured voluntary registration, the vast majority of workers give the very highest quality of care. However, a minority let patients down. This is a cause for concern for all of us and it is right that there is discussion about how we can ensure high standards of care. The Government’s view is that compulsory statutory regulation is not the only way of achieving this and can detract from the essential responsibility of employers to ensure that any person whom they appoint is suitably trained and competent for the role.

As I reminded the House earlier, there are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the vetting and barring scheme. We also need to be clear that professional regulation is not a panacea. It is no substitute, as I said previously, for good leadership at every level and the proper management of services. It can also constrain innovation in some circumstances and even the availability of services.

Experience clearly demonstrates that a small number of workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances, it is too often the case that regulation can react only after the event. The regulation of individuals will not prevent another Mid-Staffordshire, but strong and effective leadership of the workforce may do, and we believe that employers and managers who are closest to the point of risk must take responsibility for ensuring standards.

The Government believe that a system of assured voluntary registration will support commissioners, employers and supervisors to deliver their responsibility for assuring standards by providing independently assured standards of conduct and training for those on accredited registers. We believe that this approach will work well for clinical physiologists, clinical perfusionists and other groups of health and social care workers. Here, we are building on the work started under the previous Government.

The noble Baroness, Lady Finlay, is right that clinical perfusionists are not subject to statutory regulation, but I assure noble Lords that where failures or risks on the part of clinical perfusionists have been identified in the past, action has been taken action to address them. The Department of Health issued guidance in 1999 that the NHS should use only accredited clinical perfusionists, and further guidance in 2009 that clarified the systems and processes needed to ensure high-quality perfusion services. However, employers, commissioners and patients currently have no objective or independent way of determining how robust the accreditation arrangements are, as they not subject to independent scrutiny. In future, if the voluntary register is accredited by the PSA, they will be subject to such ongoing independent scrutiny.

The noble Baroness, Lady Finlay, asked me about the administration of drugs by perfusionists and compliance with the Medicines Act. Perfusionists cannot prescribe drugs, although they do of course administer perfusions. I would say in my defence to the noble Baroness that compliance with the Medicines Act is rather a technical legal point. If she will allow, I am happy to write to her on that legal position.

Both she and the noble Baroness, Lady Masham, indicated their view that voluntary registers already exist and do not work. Voluntary registers do exist, so standards for these professions exist as well. It has to be said that the Department of Health has little if any evidence of a general problem with the standards of practice for these groups, but, as I said previously, we currently have no objective way of saying to employers that if they rely on professionals who are on existing voluntary registers they can be sure that they are meeting appropriate standards. In future, where voluntary registers are accredited by the Professional Standards Authority, that will be possible.

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[Lord Rea]

I hope that it is in order to ask the noble Earl a question. When he was talking about the registration and regulation of clinical physiologists, he spent quite a long time saying how voluntary registration could be improved and how good and suitable it was, but he has not actually said why the Government have such a big objection to statutory regulation. I do not quite see why the Government are so unwilling to go ahead immediately with this.

[Earl Howe]

My Lords, if the clinical physiologists feel as the noble Lord, Lord Walton, says they do, I would simply urge them to read what I have said about the merits of assured voluntary registration. It is true that this issue has been on the table for a number of years. The difference between the start of that debate and the point that we have now reached is that there is more than one option on the table. Assured voluntary registration did not exist 10 years ago, but it is now about to become a reality. We come back to the basic point that regulation in itself is not a panacea. Those who think it is need to examine those cases where failures of care and services have taken place. It is much more about upskilling people, making sure that employers are aware of their responsibilities and ensuring proper supervision in the care setting.

[Baroness Williams of Crosby]

The noble Lord, Lord Walton, raises the point that the physiologists may well feel themselves to be treated as a second-rate profession. One of the finest things about the Bill is the way in which it extends the whole concept of treatment to people beyond those who are registered members of the medical profession, to those who belong to professions ancillary to medicine. I wonder whether the noble Earl might take into account the fact that we really need to move towards equal status between people who are involved in the profession, including in the commissioning groups, where some of those who will be on the governing bodies will be people who are not themselves doctors, but who are crucial to delivering an integrated medical outcome. I think the noble Lord, Lord Walton, has made the point that registration has become, in a sense, almost a recognition of status. I see that point.

[Earl Howe]

I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.

[Baroness Finlay of Llandaff]

The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.

[Earl Howe]

We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.

I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.

The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.

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Moved by

[Earl Howe]

246A: Clause 214, page 212, line 38, leave out “, after sub-paragraph (c) insert—” and insert “—
(a) omit the “or” preceding paragraph (c), and(b) after that paragraph insert “; or””

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[Lord Beecham]

My Lords, I should declare an interest as honorary vice-president of the Local Government Association. I congratulate the noble Lord, Lord Ribeiro, on closing a lacuna and promoting integration, which has been a strong theme of our debates. He has spotted a difficulty and has dealt with it extremely competently. I trust that the Minister will be able to accept the amendment, which makes great sense and should contribute to the fulfilment of local authorities’ obligations in this sphere.

[Earl Howe]

My Lords, I am grateful to my noble friend Lord Ribeiro for tabling these amendments, which address the important issue of ensuring that patients have consistent access to appropriate and cost-effective drugs, whether a service is commissioned by the NHS or by local authorities.

As the House will know, NICE’s technology appraisals provide important recommendations on the clinical and cost-effective use of medicines and other technologies in the NHS. The funding direction that applies to recommendations in NICE technology appraisals has helped to ensure equity of access to NICE-recommended drugs and treatments wherever patients live in England.

While technology appraisals are perhaps most commonly associated with specialist drugs or interventions used or initiated in NHS secondary care, they also make important recommendations about drugs and interventions for use in other care settings, including preventive interventions. In future, these are likely to fall within the scope of local authority commissioning responsibilities for public health. My noble friend mentioned the example of Champix. He is right: technology appraisals could address drugs to aid smoking cessation and treatments to tackle substance misuse.

I agree with my noble friend that extending a funding mandate to NICE-appraised drugs or treatments commissioned by local authorities would bring important benefits. It would guarantee patients access to appropriate and cost-effective drugs, whether a service was commissioned by the NHS or by local authorities. In doing so, it would protect patients’ existing rights as set out in the handbook to the NHS constitution, to which he rightly made reference. I am very pleased that I am able to support these amendments and I hope that your Lordships will feel able to support them as well.

[Lord Ribeiro]

My Lords, I thank my noble friend the Minister for accepting the amendments. I thank also the noble Lord, Lord Beecham, for his kind words.