Select Committee on Welsh Affairs Third Report


Origins of HPW

Regulation of nursing, midwifery and health visiting

  1. The system of a United Kingdom Central Council and four national Boards, including the Welsh National Board for Nursing, Midwifery and Health Visiting, owed its origins to the 1972 Briggs Report, implemented in the 1979 Act and amended in 1992. The legislation was consolidated in the Nurses, Midwives and Health Visitors Act 1997. In August 1997 the then four UK health departments commissioned a review of the statutory framework for the regulation of nursing, midwifery and health visiting. The Report recommended a smaller and more effective UK-wide body, the Nursing and Midwifery Council (NMC). The Government accepted the recommendations and introduced the necessary legislation by adding clauses to the Health Bill then going through Parliament.
  2. Regulation of professions supplementary to medicine

  3. At the same time, it was decided to replace the Council for Professions Supplementary to Medicine established under the Professions Supplementary to Medicine Act 1960 with a more focussed Health Professions Council (HPC).
  4. Establishment of NMC and HPC

  5. The two Orders establishing these bodies were approved by Parliament, and made on 12 February 2002.[72] These orders both provide that the National Assembly for Wales "may create or designate" a body with which each Council may enter into arrangements for ensuring that the Council's standards for education are being met. The HPC is consulting on arrangements to be made in Wales and elsewhere.[73] The NMC plainly does intend to use the relevant Welsh body to act as its "agent".
  6. Functions of new body

  7. Following the decision to abolish the WNB, a Welsh Review Group chaired by Sir Adrian Webb met to recommend to NAW the structure and functions of a new Welsh body. In June 2000 its recommendations on the body's functions, which included coverage of healthcare support workers, were approved by the NAW HSSC. Further progress was hampered by a range of issues on the type of legal entity of the new body: for example, whether it should be a Special Health Authority. In 2001 a further group, the Change Management Group (Wales), was set up to oversee the establishment of the new body and bring in further functions as agreed. In February 2002 this group recommended that the new body, HPW, should cover allied health professions and healthcare also scientists and technicians and should take on some further functions such as liaison with Healthwork UK (now Skills for Health).[74]
  8. The decision was also taken to establish by statute an Assembly Sponsored Public Body. The WNB was to have been wound up in September 2001. It was eventually abolished with effect from 31 March 2002. Since that date, a "shadow" HPW technically within the Assembly, but in fact a continuation of the WNB, has been fulfilling the necessary functions. This shadow body has 23 employees and costs 1.5 million a year.[75] The provisions in Clauses 4 to 6 of the draft Bill would give it a proper statutory footing and a degree of independence.
  9. It is not ideal that these should have to be such an interregnum between the long foreseen abolition of the WNB in March 2002 and the establishment on a proper footing of HPW, which is unlikely to be before the middle of 2003. But it would plainly have been equally undesirable to delay the establishment of the NMC until all the possible other bodies to whom it might delegate functions were in place. The NMC assured us that there had been no practical problems as a result.[76]
  10. Ambit

  11. The new HPW has an ambitious agenda, extending some way beyond that of its predecessor body. In particular, it is to take on as yet only broadly defined tasks in relation to "healthcare support workers". The Explanatory Notes gave as an example of such new functions establishing a Code of Conduct for healthcare support workers.[77] Evidence from the shadow HPW referred to "maximum flexibility" should its remit need to be changed, and stated that "the remit for HPW may change further as the modernisation of the Welsh health service is taken forward". A letter sent in May 2002 by the Acting Chief Executive listed 11 "New Functions to be developed ... as funding becomes available". The Explanatory Notes record that the former WNB budget will be transferred to HPW "with the addition of monies to support development initiatives".[78] It seems likely to some observers that the former WNB staffing level of around 20 staff and a grant from the NAW of 1 million a year will prove insufficient in view of its considerably expanded mandate.[79] HPW are currently trying to attract additional personnel to meet those demands.[80]
  12. It is for the Assembly to judge how best to task HPW in the years ahead. HPW told us in Cardiff that "Wales is trying to get one step ahead..." on regulation and support of health care support workers, under an impetus from the Welsh Assembly Government.[81] Concerns were expressed to us about this: it was argued that any Code for health care assistants should be UK-wide.[82] The NAW Minister confirmed that Wales was indeed "taking a lead", but emphasised that it was as yet early days and that she was in regular consultation with other Health Ministers in the UK. UK standards were indeed envisaged.[83]
  13. The statutory basis for the ambit of HPW's activities is contained in Clause 4. Subsection (1) allows NAW to establish HPW—
  14. "with a view, in particular, to it exercising on behalf of the Assembly functions in relation to (a) health care professions and (b) health care support workers".[84]

    Ministers confirmed that the phrase " in particular" was intended to allow for the Assembly to give HPW other functions. Mr Touhig told us that this was intended to avoid the need for subsequent primary legislation should the NAW wish to extend the remit of HPW outside its current ambit: a "belt and braces" phase, in his words.[85] Parliament needs to be confident of the broad ambit of the body it is being asked to endorse. We consider that the phrase "in particular" should be removed from subsection (1) of Clause 4, and a third phrase added at the end of that subsection to allow for HPW to exercise functions in relation to "similar matters".

  15. We are uneasy about allowing functions to be conferred on HPW by direction, as a means of avoiding the requirement for consultation and democratic process. Ms Hutt told us that the power to confer functions on HPW by direction, under subsection (2)(c), as opposed to by order under subsection (2) (b), was intended to be used merely for operational or internal matters not requiring consultation.[86] The power to give directions about the exercise of an existing function is however already in subsection (4) (moderated as we propose in para ... below). That will allow the NAW to deal with the sort of operational matters referred to in evidence to us. The question of extension of the functions of HPW is potentially controversial. We learned in oral evidence that doctors and dentists on a review group led by Sir Adrian Webb had expressed the desire to remain outside the ambit of HPW.[87] The psychologists told us in written evidence of their uncertainty as to whether they were or were not to be covered.[88] There remains anxiety among some smaller health professions.[89] These are matters deserving of an order rather than a mere direction. We recommend the removal of subsection (2) (c) of Clause 4, under which a function can be conferred on HPW by direction. We also recommend that the Explanatory Notes to be published with the Bill include a full list of those professions whose activities the NAW has already determined will be covered by HPW.
  16. Witnesses also raised the possibility that problems could arise from the power of the Assembly to direct HPW, and that it could cut across the proper performance of its functions carried out on behalf of the NMC or HPC.[90] Ms Hutt assured us that this power was intended to relate to operational matters only.[91] That is no doubt the case. It would therefore be prudent to make it clear on the face of the Bill that the exercise of functions carried out on behalf of the NMC or HPC would not be subject to NAW direction without prior consultation with them.[92] We recommend that the NAW's power of direction to HPW in exercising a function, as set out in subsection (4) of Clause 4, should explicitly require prior consultation where it concerned functions carried out by HPW on behalf of the HPC or NMC.
  17. Welsh Language

  18. Schedule 3 to the Bill lists various minor and consequential amendments to Acts required as a result of the Bill. We noted that the application of the provisions of the Welsh Language Act to CHCs is to be duly amended by paragraph 7 of the Schedule, and that it is to be applied to the WCH by paragraph 8: but that it seemed not to cover HPW. The former WNB had a Welsh Language Scheme; its most recent Annual Report records the attention devoted to some of the issues arising. Both HPW and Ms Hutt assured us that it was envisaged that HPW would have the same requirements placed on it as any other public body in Wales, and that discussions with the Welsh Language Board had already begun.[93] We assume that it will be possible to add HPW to the list of bodies in section 6 of the Act by notice. We would welcome written confirmation that it is necessary to have a specific reference to WCH in section 6 of the Welsh Language Act, but not to HPW.


72   SI, 2002, Nos 253 and 254 Back

73   Qq 5, 11-12 Back

74   Recommendations from Change Management Group Wales to the NAW, February 2002 Back

75   Q 1 Back

76   Q 2 Back

77   Explanatory Notes, para 13 Back

78   Explanatory Notes, para 29 Back

79   eg Q 99 Back

80   Q 19; also Q 100 Back

81   Qq 5, 7; also Q 16 Back

82   Qq 17, 99: Ev 2, 26 Back

83   Q 165 Back

84   Italics added Back

85   Qq 171-3 Back

86   Qq 168-170 Back

87   Qq 167, 174-5 Back

88   Ev 64 Back

89   eg Ev 65, para 6 Back

90   Qq 13-15; 101: Ev 1, 25-6 Back

91   Q 166 Back

92   Q 15 Back

93   Qq 21-22; Q 176 Back

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