Health and Social Care Bill

Lord Walton of Detchant Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Patel]

My Lords, I have added my name to this amendment, which has been moved by my noble friend Lady Emerton. The case for statutory registration, which I strongly support, has been made in a tempered way by my noble friend. Perhaps I may first try to address the lone voice of the noble Baroness, Lady Pitkeathley, because she must be concerned about being the lone voice. She said that we should allow the current regulations and procedures to take effect before making a decision. Currently, we have no procedures. There are proposals to put procedures in place both for training and possibly for registration, but we have nothing apart from that. I went to the seminars, although with respect I have to say that they were not very helpful. There are two points I want to make as a result.

When asked about the question of voluntary versus statutory registration, the response of the officers of the Council for Healthcare Regulatory Excellence—I wrote it down at the time—was that it is based on the “likely risks”; that is, if the risk is high there must be statutory registration, but if the risk is low it could be voluntary registration. Ample evidence has been provided by two former nurses in this House, my noble friend Lady Emerton and the noble Lord, Lord MacKenzie of Culkein, to show that we are talking about a high-risk situation. The second comment was that it was not within the power of the CHRE to decide whether registration should be statutory or voluntary. Of course it can take a view, and if that view is based on evidence, it would be taken seriously. However, the evidence presented by all the speakers in today’s debate is quite contrary. On both of those counts, the council’s arguments are weakened. I shall leave it at that.

I accept that we are talking about a huge workforce, one of 450,000 or perhaps more. It could be higher than that if healthcare support workers are employed in the community, in care homes and institutions for mental illness and care. So while I welcome the Government’s plans to introduce new minimum standards of training for healthcare support workers, they do not go far enough to ensure professional competence. While there would be an expectation that employers will both provide training and support a code of conduct, there will be no legal obligation to do so. I may be wrong and no doubt I will be corrected, but I believe that a mandatory, standardised approach to both training and regulation is essential in order to maximise public protection.

The noble Lord, Lord MacKenzie of Culkein, referred to the long list of activities in which healthcare support workers now engage. It is quite different from what I was used to. Nursing auxiliaries would undertake essential nursing care and sometimes domestic duties. Those support roles have now been extended, to the point of what the noble Lord, Lord MacKenzie, described as cannulation and catheterisation. As well as the issues of public safety and protection referred to by my noble friend Lady Emerton, there is a lack of clarification on areas of responsibility, delegation and accountability. Evidence shows that the responsibilities and tasks given to healthcare support workers vary across the country, and even within the same setting—for example, between different wards in the same hospital. In addition, the relationship between individual registered nurses and the healthcare support workers working alongside them can sometimes determine what duties they are asked to perform rather than recognition of their education, training, experience and competence. This variation across and within settings has led to a lack of clarity about roles and responsibilities.

Regulation and standardised training would give healthcare support workers much more clearly defined roles, and I agree with the Government’s intentions on this. This would help to ensure that support workers are only asked to perform tasks that are suitable for their competencies and would provide them with a code of conduct. They would be protected in circumstances where they are asked to undertake tasks for which they are not competent or about which they are unsure. I support that and I am glad that the Government, together with the professional organisations, are beginning to set out their intentions. No doubt the Minister will comment further on that.

I turn now to the issue of voluntary versus statutory registration. I believe that voluntary registration over the long term will lead to fundamental weaknesses. Those individuals and employers who most need to be regulated may not sign up to a voluntary register or could abuse the flexibility of its voluntary status. Through the proposed reforms in this Bill, an increased number of service providers is expected, and that might confuse the situation even more. There will be greater mobility in the workforce which could create the possibility for professionals to avoid reprimand following poor conduct by seeking employment with a different employer. Over the long term, voluntary registration will allow any organisation, employer, representative body or third party to establish a register. Some of those registers may well be successful and could, for example, achieve a “kitemark” standard. The noble Baroness, Lady Pitkeathley, referred to “assured registration”, but I do not know what that is. Is it a halfway house to statutory registration or is it half way down the road to inadequate voluntary registration? I presume that it would be a halfway house to statutory registration, which is a good idea.

There would also be the possibility of an individual gaining access to another voluntary register following their expulsion from one. Without national standards, it is not clear what the registers will take into account when accrediting an individual. These issues engender a lack of consistency. One single statutory register with clear terms of reference would not present such a problem. A mandatory register would also provide a single point of contact for potential employers when checking the employability of an individual, and differing levels and standards of registers would not exist.

I recognise, as did my noble friend Lady Emerton, that we are talking about the registration of a large workforce, and that prior to doing so training has to be provided for that large workforce. We need to consider the direction of travel: where we are, where we want to be and how we are going to achieve that. It is an important issue and I look forward to the Minister’s comments.

[Lord Walton of Detchant]

My Lords, I shall be extremely brief in supporting what my noble friend Lord Patel has said. I have listened with care to the debate. This is a huge workforce in which at the present time the standards of professional behaviour and competence are immensely variable, where the standard of education among the individuals performing these tasks is also extremely variable, and where it is clear that an improvement in standards not only of care but of responsibility and training is absolutely vital. The question we have to ask is how this can best be achieved.

I found the arguments of the noble Baroness, Lady Pitkeathley, very persuasive, and of course I understand the stance she is taking as the chairman of the Council for Healthcare Regulatory Excellence. It is soon to have its name changed, but a rose by any other name will smell as sweet. It will have responsibility for accrediting the voluntary registration of a large number of individuals working in the National Health Service. She is persuaded that a voluntary register for these healthcare support workers would be adequate and satisfactory. However, as my noble friend Lord Patel has asked, what will prevent those individuals who are responsible for or who own care homes taking on board and employing people who are not voluntarily registered? This is a crucial issue, as indeed is the point —it has not been effectively clarified to my satisfaction—about what sanctions may be applied to people who do not fulfil all the eligibility criteria that are to be established for that voluntary register. Having said that the noble Baroness, Lady Pitkeathley, was very persuasive, I am afraid that I find my noble friend Lady Emerton infinitely more persuasive.

For that reason, I have not the slightest doubt that I strongly support the amendment. It is not suggesting that a new register and national body for care assistants or a support workers’ national council needs to be established. The virtue of the amendment is that individual healthcare support workers in England would be regulated in accordance with the terms of the Nursing and Midwifery Order 2001, which is already a statutory order. It seems to be a neat solution to an extremely difficult problem. For that reason, I strongly support the amendment.

[Baroness Howarth of Breckland]

My Lords, I had not intended to speak in this debate, but I want to strike what might be a slightly discordant note at this point in the proceedings. I have a question for the noble Baroness, Lady Emerton, and the noble Earl in relation to clarification.

I will speak later in relation to social workers and that bit of social care which we seem to have forgotten. What has concerned me most in this debate is the total confusion between social care workers and healthcare workers. What really concerns me about the amendment is that it appears to be the health professional who must give instruction to those working in a variety of establishments. I declare an interest as someone who is responsible as a trustee for a large number of elderly and disability care homes. In some of those places, someone qualified in social care and not healthcare is in charge of the establishment. They are therefore responsible for ensuring that the programmes of care are designated with some healthcare professionals, because in nursing homes you need both working together.

I want to be absolutely sure that we do not arrange more confusion, which we will be discussing later today in relation to social care, and undermine even further those people who are looking after the real day-to-day care, not the medical health needs. You need people looking after medical health needs in these establishments, but you also need to worry about stimulation, relatives visiting, the psychological approach to the people in the home, how they will get to hospital and helping the hospital to understand what people with disabilities are saying. All of those things are crucial and need equal registration and care.

I am attracted to the voluntary register because it means that we can look at all these people who are working in the field who have their own professional positions but are different. I would like some clarification and for the House to understand that there is not just a medical group of people caring but a whole tranche of people out there in establishments and in the community looking after those needs, which I am sure noble Lords, if they were in that position, would also want to have looked after.

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[Baroness Masham of Ilton]

My Lords, I support the amendments in the names of my noble friends and Amendment 254 in the name of the noble Lord, Lord Hunt of Kings Heath. Clinical physiologists have had voluntary self-regulation for years and they say that it is not as effective as statutory regulation. They have been trying to get statutory regulation since 2004. All clinical physiologists work independently, and while the overall standard of practice is high there is a significant level of risk to patients as practitioners provide services that directly affect the diagnosis and management of patients. Most patients are unaware that clinical physiologists are not statutorily regulated when they are undertaking invasive or high-risk procedures. The clinical physiologists say that there are about 10,000, of which only about half are voluntarily registered. This debate for clinical physiologists has been running on for too long. They are getting frustrated. They want better patient safety, which they feel statutory registration will help to provide. They feel that the Government could easily give them this. I ask the Government: why not? They are a significant and important group doing work with a high risk to patients.

[Lord Walton of Detchant]

My Lords, I, too, support these two amendments on the regulation of clinical physiologists, and I think that the case my noble friend Baroness Finlay made about clinical perfusionists is extremely strong.

Clinical physiologists work across a wide range of disciplines. Some work in cardiac investigations, some in respiratory investigations, some in gastrointestinal investigations, but my particular interest relates to clinical neurophysiologists, who carry out a wide range of different investigations involving patients.

Many years ago in my early days as a neurologist, I was involved in the interpretation of electro- encephalograms, and I also introduced into the north-east a technique of electromyography, which is a means of identifying and studying the electrical activity of muscles in health and disease. In all these activities, I was supported by well-trained clinical physiologists. In those early days, those individuals quite often became members of the EEG society, as it was called, of which I was a founder member.

Later, as the interests and the techniques broadened and became much more extensive and much more sophisticated, that organisation, which included doctors working in the field as well as the people called technicians, who were in a sense clinical physiologists, changed its name to the British Society for Clinical Neurophysiology, and the so-called technicians became part of a body called the Electrophysiological Technicians Association—the EPTA—an organisation that later became the Association of Neurophysiological Scientists. It is now very well trained. It works not only in EEG and EMG but in techniques including evoked potential recording, peripheral nerve studies—the measurement of nerve conduction velocity as an aid to diagnosis in disease—and techniques of magnetoencephalopathy. A whole series of new techniques has been developed in which these clinical scientists or clinical physiologists—technicians as they once were—are very deeply involved. They are sufficiently well organised in their professional bodies, which represent their interests, and in the voluntary registers, of which many of them are already members, that they fully deserve registration under the Health Professions Council. Such a statute is long overdue. For that reason, I strongly support the amendments.

[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.

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The noble Lord, Lord Hunt, asked me whether I could confirm that the HPC will not be covering all professions in the future. I can confidently assure the noble Lord that there is no intention to bring all of the health professions within the scope of the HPC. I myself have received no hint of that within my department.

[Lord Walton of Detchant]

Will the noble Earl accept that, as the noble Lord, Lord Rea, said, clinical physiologists, and in particular clinical neurophysiologists, have been aware for years that they have produced a very satisfactory standard of voluntary regulation and registration? They have been talking about the possibility of achieving statutory regulation for years. It has been hinted at by Government after Government. They now feel very strongly that the failure of Governments to accept their need for statutory regulation is, in a sense, a kind of downgrading of the status of their respective professions alongside other professions of individuals who work with patients which are regulated by the Health Professions Council: physiotherapists, occupational therapists, and many more. They feel that it is in fact a mark of a lack of respect by the Government that they are being refused statutory registration.

[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.

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[Lord Patel]

I was going to do so after I had heard the noble Baroness speak, because she interrupted my speech. I beg to move the amendment.

[Lord Walton of Detchant]

My Lords, it is important to amend the amendment, if only because it should say “backgrounds other than medicine” or dentistry.

[Lord Patel]

I should like the noble Baroness to finish her sentence, because I think she was leading on to say professions other than in medicine or dentistry.