Anaesthesia Associates and Physician Associates Order 2024

Lord Markham Excerpts

Monday 26th February 2024 Lords Chamber

Moved by

[Lord Markham]

That the draft Order laid before the House on 13 December 2023 be approved.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, I note that the noble Baronesses, Lady Finlay and Lady Brinton, have laid regret amendments and that the noble Baroness, Lady Bennett, has laid a fatal amendment relating to this order concerning professional titles, supervision requirements and the General Medical Council as the regulator, along with constitutional concerns about how parliamentary oversight of regulatory bodies will be maintained in the future. These are important points that I will turn to shortly. I thank the noble Lords who took the time to engage with me on this order at a briefing session last week, when we had a very helpful discussion on the key issues.

Anaesthesia associates and physician associates are already a valued and integral part of the multidisciplinary healthcare team. We acknowledge that there have been some concerns around the AA and PA roles, but regulating these professions will help to increase the contribution that they can make to the UK healthcare sector while improving patient safety and professional accountability. As well as bringing AAs and PAs into regulation by the General Medical Council, this order paves the way for full-scale reform of the regulatory frameworks for all the healthcare professional regulators. This is a rare and significant opportunity to deliver a large-scale programme of reform that will implement improvements to patient and public safety, the system of professional regulation and the health and care workforce.

This order will give the GMC powers to register AAs and PAs it assesses to be appropriately qualified and competent; to set standards of practice, education and training and requirements for continual professional development and conduct for AAs and PAs; to approve AA and PA education and training programmes; and to operate fitness to practise procedures to investigate concerns and, if necessary, prevent or restrict an associate practising. The legislation provides a high-level framework for the GMC to regulate AAs and PAs and, importantly, gives the GMC autonomy to set out the details of its regulatory procedures in rules.

The GMC has committed to developing rules and processes for regulating AAs and PAs that will be subject to public consultation to enable regulation to begin by the end of this year. Once regulation begins, in keeping with the approach taken to bring other healthcare roles, such as dental nurses and dental technicians, into regulation, there will be a two-year transition period that will enable individuals to continue to work and use their relevant professional title while they go through the process of registering with the GMC. After the transition period, it will be a criminal offence to practise as an AA or PA without being registered with the GMC.

I now turn to the fatal amendment tabled by the noble Baroness, Lady Bennett, and specifically to the concern that this order represents a significant constitutional change without the required parliamentary oversight. I thank the Secondary Legislation Scrutiny Committee for its comments on this topic.

I highlight that the delegated arrangements that give Parliament broad powers to make changes to the regulatory landscape via secondary legislation have been operating effectively for more than two decades. It is important to note that prior to the Health Act 1999 there had been growing public, parliamentary and professional concerns about the healthcare professional regulators and the delivery of public and patient protection. Important reforms had been delayed by the need for primary legislation to overhaul a number of Acts dating back to the middle of the 19th century. The delegated powers afforded by Section 60 of the 1999 Act allowed a start to be made on the large task of modernising and rationalising this legislation. These powers have facilitated some important changes and improvements to healthcare regulation, including bringing nursing associates into regulation and introducing revalidation for doctors.

In using the powers under Section 60 of the Health Act, the Government are required to consult publicly for three months on any draft legislation they intend to lay. In addition to a legislative consultation, in March 2021 the Government undertook a three-month policy consultation that invited views on the aims of this work. These consultations and the extensive engagement conducted throughout the project have been clear that one of the primary aims of the legislation is to bring anaesthesia associates and physician associates into statutory regulation by the GMC.

Following the legislative consultation, the legislation is subject to the affirmative parliamentary procedure. This requires the legislation to be debated in both Houses of Parliament and is why we are here today. This is a necessary and proper procedural requirement allowing for parliamentary consideration and scrutiny of the legislation.

The Government have sought, at every stage of the process, to engage a wide and diverse range of interested parties and to be clear on what this work will achieve. In addition to the helpful discussions I had with noble Lords at last week’s briefing session, it is my sincere hope that this evening’s debate will be a further example of this vital engagement and that fellow Peers will feel reassured.

I turn to the order itself. The principles set out in this order have long been sought by the regulators and were recommended by the Law Commission in 2014. At present, for a majority of healthcare regulators, the requirement for parliamentary approval of changes to their rules means that they are less able to respond quickly to amend their processes to reflect emerging workforce trends or concerns. We are providing the GMC with greater autonomy to set out the details of its regulatory procedures in relation to AAs and PAs in rules it publishes itself. The GMC will still be required to consult on its rules but will not need to secure the approval of Parliament or the Privy Council, giving increased flexibility to rapidly adapt its processes and procedures to changing requirements.

Although the order increases the number of areas that the GMC has autonomy over in respect of its day-to-day functions in relation to AAs and PAs, we recognise that there needs to be a system of checks and balances in place to ensure that the GMC continues to act in accordance with the needs of patients, registrants and the wider healthcare sector. The legislation places a number of duties on the GMC to ensure that the new powers are used reasonably and proportionately. For example, it must discharge its functions under this order in a way that is transparent, accountable, proportionate and consistent.

The GMC will remain accountable for any function, or part of a function, it delegates to another regulator or third party. Although the GMC already has the power to set its own fees for medical practitioners, and the same power is proposed for AAs and PAs, we are also introducing a requirement for the GMC to include in its annual report the evidence it has considered of the likely impact of any changes made to fees.

We are also retaining current accountability mechanisms. For example, the GMC will continue to submit annual reports to the Privy Council and copies will be laid before each House of Parliament, which will enable Peers and MPs to scrutinise the regulator’s activities and raise any issues in the House. There is also the Health and Social Care Select Committee, which can hold the GMC to account. As noble Lords know, it has held hearings with the GMC and other professional regulatory bodies on a number of occasions to oversee their work.

The Professional Standards Authority for Health and Social Care—the PSA—oversees the 10 health and care professional regulators and is an independent organisation accountable to the UK Parliament. It carries out performance reviews on all the regulators to see whether they have met the standards of good regulation and publishes its findings. It also has an escalation policy that would allow the PSA to escalate serious or intractable concerns to others, particularly the Government and Parliament. Finally, the Privy Council has a power to direct the GMC where it has failed to carry out its statutory functions using its default powers. I hope these points on how oversight and scrutiny of the healthcare regulators will be maintained in future will reassure the noble Baroness, Lady Bennett, and address the issues that were raised in the Secondary Legislation Scrutiny Committee’s report.

I turn to the role titles, which are referred to in the regret amendments tabled by the noble Baronesses, Lady Brinton and Lady Finlay, and the fatal amendment tabled by the noble Baroness, Lady Bennett. They have been the topic of much debate online, specifically about the use of the word “associate” rather than “assistant”. It is worth noting that AAs and PAs have been practising in the NHS for around 20 years, with the “associate” term being in use since 2019 and 2014 respectively. The titles reflect the fact that, as with nursing associates, they are part of a multidisciplinary team of healthcare professionals from various disciplines working together to deliver co-ordinated patient care.

As set out in National Institute for Health and Care Excellence—NICE—guidelines, all healthcare professionals should introduce themselves and explain their role to the patient regardless of their job title. In addition, in advance of regulation the GMC has published interim standards for AAs and PAs, which make it clear that professionals should always introduce their role to patients and set out their responsibilities in the team.

The noble Baroness, Lady Brinton, also outlined concerns in her regret amendment around the decision for the GMC to take up the regulation of the AA and PA roles. The assessment of the appropriate regulatory body for AA and PA regulation was completed in 2019 following a public consultation. The majority of respondents to that consultation were in favour of the GMC taking on regulation, including the professional bodies representing the roles and the medical royal colleges, including the Royal College of Anaesthetists, the Royal College of General Practitioners and the Royal College of Physicians.

The GMC is the right regulator for these roles. Regulation will give the GMC responsibility and oversight of AAs and PAs, in addition to doctors, allowing it to take a holistic approach to education, training and standards. This will enable a more coherent and co-ordinated approach to regulation and, by making it easier for employers, patients and the public to understand the relationship between the roles of associates and doctors, help to embed them in the workforce.

--- Later in debate ---

[Lord Markham (Con)]

I thank all the noble Lords for their contributions. The wide range of views and experience shows the House at its best. On the serious point of the noble Baroness, Lady Bennett, about making sure that there was a full debate, I hope noble Lords feel that this is a good example of where we have had a full and thorough debate.

I am glad to say that, within all those contributions, there was a general agreement on the importance of these roles and the vital contribution that they can make. They can allow doctors to work to the top of their profession—my noble friend Lord Bethell made that point. As the noble Lord, Lord Scriven, rightly said, they are a supplement to doctors. I hope that, when you have support and allow people to work to the top of their professions, that will cover some of the points that my noble friend Lady Harding and the noble Baroness, Lady Watkins, made about good management, making general practitioners and doctors feel valued in their roles, and making them feel that they are being offered these support service. That is very much within the scope of practice here. Oh, I now see that the noble Baroness, Lady Watkins, is on the Woolsack; I was looking all over for her and thinking, “Surely my speech is not so boring that I have lost her already”.

I hope noble Lords feel reassured by all this and that, as drawn out in the numbers referenced by my noble friend Lord Bethell, this represents only 8% of the GP workforce, so it is very much a supplemental role rather than a substitute.

All speakers echoed the point made passionately by the noble Lord, Lord Hunt, that PAs and AAs play a valued role—one always grounded, as my noble friend Lord Lansley said, in the central role: the doctor or the anaesthetist themselves.

As my noble friends Lady Harding and Lady Bloomfield said, this seeks to regulate them properly, with much clearer regulations, a defined scope of practice and the flexibility to adapt. The noble Baroness, Lady Merron, asked the very fair question of why this has taken so long; the honest answer is that I do not know, but the whole point of this is to build in flexibility. With all the will in the world, as we have seen, if it required primary legislation then, for whatever reason, there would not be time available in Parliament to make the changes quickly enough for the required flexibility. That is what we are trying to do with this order.

The noble Baroness, Lady Bennett, said that she wants to make sure all voices have been heard. I hope those voices have been well heard. During the 18 months that I have been in this role, I have had more correspondence on this than on anything else. She mentioned the Observer article on the long-term workforce plan; I assure her that there is no back-pedalling on this. The target is for incremental increases in the numbers each year. Funnily enough, the frustration expressed to me by Minister Stephenson today is that we are not only hitting the targets for this year but exceeding them. There is definitely no back-pedalling; rather, we are exceeding our targets.

I assure the noble Baroness, Lady Merron, that we do not intend to impinge at all on specialisms. Following on from the Oral Question today, the next stage is to try to get into the detail of the specialisms.

On the points raised by the noble Baroness, Lady Finlay, there is some confusion around the protected titles. As we all know, “doctor” and “consultant” are not protected titles today; you can call yourself a doctor if you have a PhD, and I called myself a consultant once when I worked as a strategic consultant. There is confusion. On the point raised by the noble Baroness, Lady Watkins—I see that she has now popped up by the Throne; it is like “Where’s Wally?”—we need to look at an overhaul of titles, full stop, and at some of the acronyms, such as AAs, as mentioned by the noble Lord, Lord Allan. The idea is that all of this will be part of a full GMC consultation process over the next couple of years on this reformed legislation; we will look at all these points there.

There are separate registers. As mentioned, it is intended that there will be separate prefixes of PA and AA in the registration numbers, but I fully accept that it will not mean anything to a member of the public that a serial number is PA1234. It is a good point that there should be a more thorough consultation on the use of titles, because it is absolutely a confusing picture.

The noble Lord, Lord Harris, with his experience of the GDC, showed that having one regulatory body looking after everything provides clarity. That is valuable, but, as the noble Baroness, Lady Brinton, said, our Explanatory Memorandum needs to be clearer, and so I make that commitment.

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[Lord Harris of Haringey (Lab)]

It is in your order.

[Lord Markham (Con)]

That is something I will pick up on. On the point raised by the noble Baroness, Lady Fox, I say that the GMC, with the CQC, should be able to give the ongoing quality assurance.

The noble Lord, Lord Hunt, said very well that the discussion on mistakes has not been useful. We are all aware that, regrettably, mistakes happen in all areas, and we need to make sure that we understand and learn from them, rather than using them to point fingers. Moving into the regulated space, where there is duty of candour, is useful.

I do not think anyone could be failed to be moved by the passion with which the noble Lord, Lord Winston, spoke about his experience. It was a very telling story. As reassurance I cite the noble Lord, Lord Patel, on the scope of the practice: it is one anaesthetist to two AAs, and the role of the AA is very much to maintain, as he explained well. In a similar way, the PAs really do need to work under GP supervision. The numbers are set out in the long-term workforce plan. We have a foot on the throttle for those training places, particularly in regulating them. We will make sure that things are properly managed so they cannot get out of control.

I absolutely agree with the points made by the noble Baronesses, Lady Watkins, Lady Harding and Lady Bloomfield, that this is a people management issue, and a lot of the heat from this debate is a feeling from junior doctors and others that they are unloved and uncared for. I freely admit that there is a wider issue that we need to look at, concerning things like hot meals; clearly, it is something trusts need to look at it as well.

I echo the points made by the noble Lord, Lord Hunt, that passing this order is the best way to ensure the safety of patients. As we develop, there is perhaps scope to be more ambitious, but let us try to do this step by step, to make sure we really are happy and that the scope of practice works. As ever in a debate as long as this—it has been a very thorough one—I will write to fill in any details that I have not managed to cover. At this point, I hope and trust I have provided sufficient answers to the questions, and have demonstrated—

[Baroness Finlay of Llandaff (CB)]

I hesitate to rise because the House clearly wants to end the debate, but I am not sure whether the Minister, in summing up, said whether the titles of physician associate and anaesthesia associate will be protected titles when the order goes through. Are they negotiable? I ask that question specifically because I had a lot of discussions with different people involved in this, particularly the GMC, and I have been concerned that if those are the only protected titles of all the grades registered by the General Medical Council, we may be storing up further problems for the future. If this is to be a protected title, can the Minister provide assurance that further statutory instruments could be brought forward if, in the light of the consultation advised by the noble Lord, Lord Allan, a different title is suggested? Could it then be changed?

[Lord Markham (Con)]

It is a protected title. The point I was trying to make about the general overhaul and understanding of the titles, however, is that there will be the scope to do this, as doctors and consultants are not protected titles today. I think we need to develop clarity on that, which is why the further reforms and SI changes will set out to protect other titles as well.

[Lord Patel (CB)]

Sorry about prolonging the debate, but is that the only protected title of all healthcare professionals?

[Lord Markham (Con)]

My understanding is that currently none of the titles is protected. These are the first set of titles that will be protected as a part of the secondary legislation that we are passing. The idea is to understand the hierarchy of titles and start to introduce the protections. I am happy to follow up in writing in more depth on all of this. I thank the noble Lord for his intervention.

Hopefully, this order will provide a standardised framework of governance and assurance for clinical practice and professional conduct for AAs and PAs. It will enhance patient safety and enable AAs and PAs to make a greater contribution to patient care. I beg to move.