Regulation of Health and Social Care Professions Etc. Bill [HL]

Lord Hunt of Kings Heath Excerpts

2nd reading (Hansard): House of Lords
Friday 3rd February 2017 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

[Lord Hunt of Kings Heath (Lab)]

My Lords, I draw the House’s attention to my role as a trustee of the Royal College of Ophthalmologists. We are indeed fortunate in this country in the quality of our health and care professionals and the contribution they make to the NHS, social care and society generally. As demographic pressures grow and the potential of what can be achieved also grows, the challenges facing those professions should never be underestimated. That is why the way they are regulated is so important.

The Francis report on the tragic events at the Mid Staffordshire NHS Foundation Trust some years ago raised a number of challenges to the way that health and care professional regulation works in this country. Francis suggested that professional healthcare regulators need to be much more adept at analysing and using the information they have in order to take a proactive approach to risk to patients. The Francis inquiry also identified a number of barriers to overcoming the challenges. It describes restrictive and complex legislation and insufficient capacity and resources on the part of the regulatory bodies.

In the meantime, the Law Commission has been undertaking work on the legislation covering the regulation of health and care workers. This comprehensive review considered the legal framework for bodies responsible for 32 professions, covering approximately 1.44 million people. It looked at the whole process of the registration of these professionals, the standards that were set for professional conduct, the way in which disciplinary procedures were undertaken and the way those regulators were held accountable to Parliament. It published a report in April 2014 setting out its views, along with an extensive draft Bill, which would have brought all the legislation covering the various different professions together in one legislative framework.

At the time, the Government welcomed the Law Commission’s work. Indeed, in January 2015 they accepted its recommendations, particularly that there should be,

“a single, overarching objective of public protection placed on each regulator … wider powers and greater flexibility for the regulators to investigate and dispose of cases”,

and “greater consistency” in the way disciplinary panels were held in each of the regulatory bodies, whether relating to doctors, nurses, physiotherapists or the other professions. It also recommended,

“greater separation between the regulators’ investigation and adjudication functions”—

a necessary split—so that investigations should be undertaken by one part of the regulatory body, and judgments about whether a professional is still fit to practise should be done as a separate operation. It also made it clear that there should be,

“an overarching duty on the regulators to ensure the ongoing fitness to practice of registrants”.

That is a very important function, given that a practitioner who has been licensed to practise may well then practise for 30 or 40 years. Ensuring that as the years go by they are still absolutely ready to practise becomes very important.

It was very welcome when the Government accepted the principle of the Law Commission’s work in such forthright terms. However, since then there has been a long silence. Nothing has happened. No legislation has been brought forward. It has not even been put in for pre-legislative scrutiny. In my view, this was an ideal vehicle to deal with these issues because pre-legislative scrutiny could have ironed out some of the issues raised by the Law Commission and would have enabled the Government to come forward with a Bill in which there was very strong consensus. Alas, nothing has happened, despite the Government’s clear intent to ensure that the lessons of the Francis report were learned. My Bill is a nudge to the Government that it is about time they brought legislation forward, and tries to give them some confidence that that legislation would be welcome and that Parliament would take a constructive approach to any such proposals.

I do not agree with all of the Law Commission’s proposals. First, I do not agree with the recommendation to abolish the statutory Midwifery Committee within the Nursing and Midwifery Council, which is the subject of a debate on 28 February. Secondly, I do not agree with the Law Commission’s view that the Privy Council’s role in relation to health professionals should be removed entirely. We are currently debating a similar issue in the higher education Bill, and many of the arguments against the changes there would apply to the health professions as well. Thirdly, I have reservations about the Law Commission’s proposal that simply by an order, a Minister could abolish a regulatory body and replace it with another. For instance, under its proposals the General Medical Council could be abolished and the registration of doctors transferred to the Health and Care Professions Council. There are mixed views about whether that is a good thing; for myself, I do not think it should simply be done under an order-making power. Some things need to be reserved for primary legislation.

Since then, other organisations have commented on the original Law Commission report, including the Professional Standards Authority, which oversees the regulatory bodies, and the Nursing and Midwifery Council. They have all come up with some reservations about the Law Commission’s proposals—but that is exactly what you want and what pre-legislative scrutiny would have ironed out. We have to accept that we have moved on. We need to look afresh at the requirements of health and care regulation.

In the meantime, the Government have ploughed on with trying to make changes in a piecemeal way to individual regulatory bodies. These are called Section 60 orders and they plough through your Lordships’ House with monotonous regularity, the problem being that the amount of time officials at the Department of Health devote to these individual orders would be much better devoted to drafting a Bill to deal with all the professions together. They are also not dealing with the inconsistencies between different regulatory bodies. Thinking of Mid Staffordshire, where there was a collective failure, an incident involving a patient can often involve more than one profession. It seems illogical to me that if disciplinary proceedings are held, they should be dealt with in different processes for different professions.

The argument from the regulators, too, is that they overwhelmingly want to see new legislation. The NMC and the Royal College of Surgeons say that the current regulation is outdated and governed by conflicting legislation, and the college goes on to say that it thinks the current situation compromises the regulator’s ability to safeguard patient safety. The General Medical Council believes that we need legislation to “improve patient protection”.

Another example is the Opticians Act, which is hugely out of date. We had a debate in your Lordships’ House a year or so ago about a UK company called Adlens, a spin-off company from Oxford University, which has developed flexible and adjustable reading spectacles. It is exporting millions of these from the UK to Japan and the US but up to now, it has not been allowed to market them in the UK because of the outdated approach of the Opticians Act. We also have many professions which are not regulated but ought to be. For instance, there is a voluntary register for clinical physiologists but you can practise without being part of that register. The Royal College of Radiologists is concerned about tele-radiologists and sonographers who, again, are not regulated but are involved in patient procedures which, if done incorrectly, could cause them harm.

There have been other developments. I pay tribute to the PSA, which has published two reports making the case for change. I do not necessarily agree with all the proposals it has set out, but it has done immeasurably valuable work in pointing to the future direction.

The question then arises: what are the Government going to do? A consultation is promised in the next few months, but I put it to the Minister that it is one thing to have a consultation but quite another to bring proposals to Parliament. There remains a great deal of doubt within the health service and regulatory bodies as to whether the Government are really committed to bringing forward new legislation. I take your Lordships back to the Francis report, which clearly identified weaknesses in the way we regulate health and care professionals. The regulatory bodies themselves would acknowledge that; patient groups, too, are clear that we need reform. I very much hope that the Government can respond today by saying not only that they will introduce proposals but that they are committed to bringing legislation forward at the soonest possible moment. I beg to move.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

The Question is that the Bill be read a second time. As many as are of that opinion—

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the Minister and all noble Lords who spoke in the debate. The noble Lord, Lord Patel, who was of course a distinguished president of the Royal College of Obstetricians and Gynaecologists, put it absolutely right when he described the outdated nature of current legislation. He referred to the Australian experience. If we are to look afresh at regulation, we should look at whether one regulator is the answer. There could be arguments against, not least the disruption that is likely to be caused. So many current cases on the books would have to be dealt with according to existing legislation that there might need to be enormous structural changes. None the less, surely it is right to look at that. It is very interesting that he put that on the table.

My noble friend Lord Turnberg, who was an equally distinguished president of the Royal College of Physicians, gave some examples of why the current regulatory approach is not working. The most telling point of his speech was that regulators are unable to make a proportionate response. If a practitioner, having had a complaint made against him or her, acknowledges that it is justified and is prepared to respond in accordance with the regulator’s wishes, it still has to go through a hearing. That seems unnecessary.

My noble friend also raised the problem of when a regulator is concerned about how trainees are being trained in an NHS institution. The only sanction the regulator seems to have is to withdraw training recognition, but that can have a devastating impact. If you withdraw training from a whole hospital department, not only is that department likely to be unable to run, it can have a knock-on effect on the integrity of the whole general hospital and could lead to its closure. There have been instances where the threat to withdraw training has threatened the viability of a whole institution. From the GMC’s point of view, pondering the public interest, that places it in an impossible position, which is why we need a more proportionate regulatory system.

It is always a delight when the noble Baroness, Lady Gardner, intervenes in our debates. She raised the knotty issue of the retired lists, which have been around for many years. Your Lordships’ House has good examples to offer of how to deal with retired lists and, if the noble Baroness, Lady Jones, has her way later today, we may have to have a very large retired list indeed.

The noble Baroness, Lady Walmsley, asked some very pertinent questions about the Government’s progress, and argued strongly for pre-legislative scrutiny, which I, too, think is a very good thing. She mentioned cosmetic surgery. It would be good to know where the Government are going on the need to regulate cosmetic surgery. We need to act. She raised the comments of the Nursing and Midwifery Council and the fact that current procedures based on legislation are simply too complex and prescriptive.

I am very grateful to the Minister for her response. Essentially, she said that the Government are serious about regulatory reform and the consultation is due very shortly. Although she challenged my assertion that current legislation compromises safety, I refer her back to the Francis report and to what the Royal College of Surgeons says: outdated legislation compromises the regulatory bodies’ ability to safeguard patient safety. As she said, the current arrangements are confusing, inconsistent and slow.

The Government are to consult very shortly. That is very welcome. Of course, the Minister cannot say from the Dispatch Box when or whether they will then produce legislation—they will have to see the outcome of the consultation—but I make a plea to her and her colleagues that this matter is important. The Government would find Parliament sympathetic to improving the regulatory procedures, and I strongly encourage them to bring forward legislation. We know that the Secretary of State is very interested in the establishment of an investigatory safety board, on the lines of that in the airline industry, which I understand will require legislation. I should have thought that a safety Bill which encompassed both the investigation board and reform of the functions of regulators would fit nicely together and make an excellent Bill for, if not the next Session, the one after that. I very much hope that we will see progress.

Bill read a second time and committed to a Committee of the Whole House.