NHS Reform and Health Care Professions Bill

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Mr. Hutton: There are, and I tried to say which groups they were in an earlier debate. Psychologists have been pushing for a scheme of professional self-regulation for some time, and have been in discussion with Ministers about that. I remember meeting them about 18 months ago to discuss it. It is generally well known that operating department practitioners and perfusionists, examples that I have given previously, are also arguing for professional self-regulation.

We are trying to ensure that the UK council has the flexibility to deal with those organisations as and when they might become part, for example, of regulation through the Health Professions Council. It is through advice from the HPC that Ministers will come to decisions about the need for future regulation in those areas.

Mr. Heald: That will happen only through the HPC, and it is not thought that any other groups out there would be likely to join. I cannot think of any, but there might be another general council of some sort that I have missed. That was helpful, but can the Minister drop me a line listing the main groups that he is currently aware of that might be future members of the HPC? I think that that might be helpful on Report.

I am still not quite clear what sort of advice the various bodies in clause 24(6) might seek from the council. It states:

    ''advice on any matter connected with a profession appearing to him or them to be a health care profession'',

but some thought must have been given to what advice might be sought, and in what circumstances. Can the Minister give us some idea of what he has in mind? He mentioned short notice requests being necessary and those interfering with consultation, but I cannot think what circumstances this relates to. Might it be when a crisis occurs at a particular hospital, involving a particular profession, and the Minister suddenly wants urgent advice about regulation?

Mr. Hutton: The hon. Gentleman's example is a situation that might occur. Others might come up from time to time.

I am not disputing with the hon. Gentleman the need for consultation with a profession. The UK council should be the body to undertake that on occasion and it is clear from its functions laid out in the Bill that it will have the opportunity to do that. My only dispute with him is that to require it, in the Bill, to consult before giving any advice to Ministers would be to include an unnecessary restriction. I do not think

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that that would be a good idea because there must be efficient conduct of business between the council and Ministers.

Mr. Heald: I am grateful to the Minister for those replies. I hope that he might be able to write to me about the various applicant groups, and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24, as amended, ordered to stand part of the Bill.

Clause 25

Regulatory bodies and the Council

Mr. Heald: I beg to move amendment No. 238, in page 30, line 37, after ''functions'', insert—

    ''take all reasonable steps to''.

The Chairman: With this it will be convenient to take the following amendments: No. 186, in page 30, line 39, leave out subsection (2) and insert—

    ''(2) If, after consulting the regulatory body concerned, the Council concludes that—

    (a) it is necessary for the protection of members of the public for a regulatory body to make or amend a rule (under any power the body has to do so); and

    (b) the regulatory body has not made or amended the rule and will not do so

    the Council may if it thinks fit lay a special report before each House of Parliament.''.

No. 237, in page 30, line 43, leave out subsections (3), (4), (5), (6) and (7).

Government amendments Nos. 247 and 248.

Mr. Heald: The amendments are important. The first in the group, amendment No. 238, is not, perhaps, the most important, although it is quite important. Amendment No. 186 is the most significant.

Amendment No. 238 would require a body to

    ''take all reasonable steps to''

co-operate with the council. Clause 25(1) states:

    ''Each regulatory body must in the exercise of its functions co-operate with the Council.''

My understanding is that ''co-operate'' there is intended to be within the bracket of reasonableness. Can the Minister confirm that reasonableness is implied in the duty to co-operate and that it is not an absolute duty, but one that is limited in that way? I imagine that that is how a court would look at it.

5.15 pm

Amendment No. 186 is the main amendment, and amendment No. 237 is consequential upon it. Amendment No. 186 is proposed on the basis of concerns raised by the statutory regulators of the eight relevant bodies. Others also support it. The presidents of the various regulatory and shadow regulatory bodies make it clear that they strongly support the conclusions of the Bristol royal infirmary inquiry. They believe that the principle of independence from Government is seriously undermined by the proposal in clause 25(2) that a new council, a non-ministerial Government Department, would be able to direct

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regulators to change their statutory rules on important matters even if regulators believed it to be against the public interest. That concern is even greater because that imbalance, as I would put it, between the lay membership and membership from the regulatory bodies is also proposed.

The background to amendment No. 186 is the concern that the various statutory regulators have set out. Clause 25 gives the Council for the Regulation of Health Care Professionals wide powers to direct each statutory regulator on how to do its job. It dilutes the principle that each regulatory body should be directly accountable to Parliament.

Although the words ''recommend'' and ''encourage'' are used quite widely, the power of direction will apply to all matters relating to rules that require Privy Council approval. In effect, that means almost every significant policy area. It is not framed as a reserve power, which the Minister called it earlier on in passing, nor limited in any way to exceptional circumstances. If it were, we would expect that to be defined in the Bill. Even where a regulator believes that to make a requested change will be against the public interest, it will be required to conform with the CRHP directions. The various statutory regulators believe that only Parliament should be able to make that requirement.

Amendment No. 186 has been tabled with the support of the statutory regulators. It is also supported by the BMA, which has said that it is opposed to the substantial powers in the Bill that would enable the council to direct a regulatory body to change its rules on many important policy decisions, even when that body believes that it is not in patients' best interests. The BMA has worked successfully with the GMC to modernise and streamline its structures, and supports this amendment.

We will come on to the Government amendments later, but Government amendment No. 247 states that the Secretary of State ''shall'', not ''may'', make provision in regulations as to the procedure for giving directions to a regulatory body.

Amendment No. 248 states that the regulations must require the council to consult a professional body before giving it directions. That is all well and good, but it is the power of direction itself that undermines the independence of the council. The amendment is drafted in line with the way in which the health ombudsman works; it requires the laying before Parliament of a report, which can then be acted upon. That is a very solid way of dealing with matters, which has worked in other contexts.

Dr. Evan Harris: I have added my name to amendment No. 187. I do not have a huge amount to add to the reasonable points argued by the hon. Member for North-East Hertfordshire. In discussions on earlier clauses I told the Minister that this was a crucial area, not only because of the issue that we are debating—the power of the council to direct regulatory bodies, which, as I shall argue, runs contrary to the theme of this part of the Bill—but because of the Government's resistance so far of the principle that there should be parity between the

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council members appointed by the Government and those appointed by the regulatory bodies, or a majority for the latter.

The use of the terms ''lay'' and ''professional'' is unhelpful in this sense, because I see no reason why the regulatory bodies should not appoint a lay member to the council. The purpose is to represent the council, not the profession. Nevertheless, I believe that the idea of professional self-regulation is understood to mean a majority in the sense of people appointed by the regulatory bodies. The Government's current resistance to such a majority raises the stakes in the debate.

Exactly as the hon. Member for North-East Hertfordshire says, the power does appear to be a strong power, and does not appear, at least on the face of the Bill, to be a reserve power. I know that the Minister can hardly wait to get to his feet to explain that it will be a reserve power. Before he does so, I should like to point out to him the curious position of the word ''direct'' in the Bill. Clause 23(2)(a) talks about the promotion of the interests of the patients—not seeking to ensure those interests, but simply the promotion of best practice. Clause 23(2)(c) says that one of the council's functions is to encourage regulatory bodies to conform to principles relating to good professional self-regulation, and clause 23(2)(d) says that another is to ''promote co-operation''. The choice of those words, which has my support, is based on the feelings behind those words. Similarly, clause 24(2)(c) says that the council may

    ''recommend to a regulatory body changes to the way in which it performs any of its functions.''

There are other areas where the terms are not as harsh as ''to direct'', and clearly the statement that the council

    ''may direct a regulatory body to make rules'',

as in clause 25(2), significantly changes what that means. As has been said, the rules—rules that must be approved by the Privy Council—would cover almost every area of a regulatory council's work, at least according to briefings that I have seen from some regulatory bodies.

It seems to me that the Government's amendments seek to reduce the sense of strength of that clause by changing the word ''may'' to ''shall'' when it comes to the Secretary of State's making provision in regulations. That is a curious change of position as the Minister has previously resisted, for reasons that he has given in each individual case, the changing of ''mays'' to ''shalls'' where they are, arguably, protective of the over-regulation of the profession.

The second Government amendment is also intended to be reassuring. However, I will need some persuasion before I withdraw my support for amendment No. 186.

 
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