NHS Reform and Health Care Professions Bill

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Mr. Heald: I have been listening carefully to the hon. Gentleman's remarks. Does he agree that another problem is that the test for the council is subjective? In certain circumstances of the sort that he described, one can envisage an emotive case that might strike the imagination of the public and the media. In such circumstances, the council should have a duty to be objective, not simply to have to ''consider'', which is a subjective test. We want that man on the Clapham omnibus in there, rooting for sensible changes.

Dr. Harris: I agree with the hon. Gentleman's points before his last analogy. I am not sure that it is helpful to do such things by opinion poll, although I know that he was not quite saying that. But the point is well made.

My point is that the words ''consider'' and ''desirable'', which could both imply ''on balance'', could be beefed up. I join the hon. Gentleman in asking the Minister to re-consider that, if not now, then at a later stage. In addition, where the clause refers to protecting members of the public, that could do with some qualification: arguably, with the word ''additional'' before

    ''protection of members of the public''.

Clearly, this is all about protection of members of the public, and if the ''last resort'' power is to be exercised, something significant must be gained from it.

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I am troubled by what might happen. I give an example from another area, which hon. Members might consider relevant. A teacher, who is a professional, has been convicted in the past of a sexual offence, but for something that we no longer consider a sexual offence because things have changed. But the view is taken that anyone who has been convicted of a sexual offence at any point, even if that is not now considered to be a sexual offence, is unsuitable to go near children. Such issues are difficult and not always clear-cut. The example that the Minister cited might lure us into a trap. I am not sure that I have the support of the hon. Member for West Chelmsford there, judging by the expression on his face. He asserts that from a sedentary position.

These are difficult issues that need to be dealt with on an individual basis in all circumstances. I am not sure how possible it will be for outside organisations to take rational and correct decisions without access to information about circumstances. Obtaining that access may contravene confidentiality and the privacy of the people concerned, so the citing of individual cases is not the Minister's best argument. He made a good defence of his position by stating that the amendment appears to change non-professional regulation from being carried out by an over-arching council to being carried out by Parliament directly, as opposed to indirectly through the Bill.

I have argued for avoiding the political control of the health professions. Simply transferring power explicitly to Parliament may not achieve that. The purpose of the amendment would be to ask the council, if it sees fit, to lay a special report before each House of Parliament. Such conflicts—I do not think that that is too strong a term given that the Minister thinks there could be a head-to-head impasse—should be brought to public and parliamentary attention. However, I doubt that that will be done. The mere retention of the power of direction will give a power imbalance to the relationship. When a body has the power of sanction, the body to which it is subject will often cave in or concede earlier than it would do normally because it does not want to go through the humiliation or public notice of the power of direction being used.

6.15 pm

Mr. Heald: One reason why we have tabled the amendment is that bodies such as the GMC and the Chartered Society of Physiotherapy have already made considerable changes to the way in which they are organised as a result of the issues and criticisms that have been in the public domain. Such bodies are responsive to public criticism. What better way of showing the salience of criticism to the public than to lay a report before Parliament? That would publicly make that point.

Dr. Harris: I agree with that. The Minister has a good point to make and makes it well, but one can see it coming. His amendments are welcome for their own sake and for the fact that they are a sign that the

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Government recognise the point at stake. I also hope that they are a sign that they will think further on the subject.

The Minister said that he expected the power to be used rarely if at all and that that would be a sign that all was well. I am not sure that the lack of use of the power would be a sign that all was well. As I said, many regulatory bodies may not want the sanction—it will be viewed as a sanction—used against them and may be prepared, against their better judgment, to make the change without being directed to do so. That would not aid the purpose of openness or strengthen the belief in the idea that professional self-regulation should be open—we all share that belief, and it is contained in the Kennedy report. As the hon. Member for Westbury tellingly said, the experience is that health professionals are judged more fiercely by their peers, whose reputation they indirectly besmirch by poor behaviour, than they are by lay appointees. That is anecdotal, but accepted by those lay members whom I know.

I appeal to the Minister further to consider how to meet our concerns. The more he talks about extreme cases, the last resort and the last ditch, the less the Bill appears to reflect that.

Mr. Heald: I realise that I have had a good say, but I want to amplify one issue that arises from a point made by the hon. Member for Oxford, West and Abingdon concerning the way in which the various bodies dealing with health care professionals have been prepared to change their rules in order to respond to public concerns. I am looking at a note that I have been given by the Chartered Society of Physiotherapy, which states:

    ''The CSP is supportive of the ideas behind the establishment of the Council''

such as

    ''promoting the interests of patients . . . The CSP strongly supports the view that professionally led regulation for physiotherapists should continue.''

The CSP also states that

    ''few disciplinary cases are instigated against physiotherapists. Furthermore, regulation of the physiotherapy profession has only recently been reviewed. The CSP—along with fellow members of the Allied Health Professions Forum (AHPF)—have been through two years of consultation and discussion leading to the agreement to establish a new Health Professions Council (HPC). This substantial reform of the State Registration system has come about as a direct result . . . We fear that the creation of the Council for the Regulation of Health Care Professionals will unscramble the agreements which have already been reached between the Government and the AHPF on . . . accountability. But it is not only regulation of the allied health professions which has been amended recently''.

It goes on to point out that the same is true of nurses, midwives and health visitors:

    ''the General Osteopaths Council and the General Chiropractic Council are still relatively young organisations (set up in the mid-1990s).''

Its concern is that

    ''the Bill may weaken the concept of professional self-regulation.''

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Having gone through all this effort to get modern rules that meet the requirements of the day, the council, not in a vital matter of interest to the public but if it considers it would be desirable to do so, can muck it up.

If the Minister is prepared to take back the relaxed language of clause 25(2) and turn it into the sort of reserve power to which he and the explanatory notes refer, or if he is prepared to examine a regime that fits the health commissioner, we would be grateful.

Mr. Baron: It is plain that Opposition Members are concerned about the independence of the regulators, and we want to preserve that independence as far as possible. May I ask the Minister to address the issue in another way? Will he reassure us on the disappointing silence about the accountability of the UK council? To whom is it accountable and to whom should it report? That would help to allay my fears about the lack of a satisfactory limit on its powers. In preserving the independence of the regulators, the Government need to address that issue, in the hope that we can put to rest the concerns about these proposed ombudsman-style powers, which appear to be unlimited.

Mr. Hutton: That is a second bite at the cherry. Those are old arguments that have been recycled. Given that everyone has had two or three goes, all that I can usefully add at this stage of the debate are a couple of observations. I have heard nothing today that makes me think that we should take the clause away and redesign it. We have had these arguments with the regulatory bodies, the points have been put to us and we have attempted to address them in the amendments that we have tabled. I made it clear at the beginning that it was evident that there was disagreement between the Government and the regulatory bodies about the need for the power. I regret that, but I cannot add a great deal more to the points that I have made because it is necessary for the council to have that power.

I disagree with the argument that the hon. Member for Oxford, West and Abingdon has tried to advance that this reserve power—the ultimate last ditch—gives the council the right to roam. The clause is clear about when the power can be exercised, and I disagree with both him and the regulatory bodies in their interpretation of it. This is a case where there is a genuine disagreement on the clause's purpose and intention. It has been my purpose and intention in making these remarks to make my understanding of the clause clear not only to the Committee but to any subsequent forums, which has a significance that we should not underestimate. I have tried to reassure and I have tried to put the clause in context, but a disagreement remains. That is unfortunate, but it is not worth concealing.

All that I can say to the hon. Member for Billericay (Mr. Baron) is that he genuinely needs to have another look at the Bill because there is no confusion on accountability. He is incorrect about clause 26, which has not attracted any significant concerns. It is clear from the Bill that the UK council is to be accountable to Parliament, which is how it should be.

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The substantial area of disagreement concerns the amendment tabled by the hon. Member for North-East Hertfordshire on what would happen if there were to be a disagreement between a regulatory body and the UK council. He proposes that, in that case, a report be made to Parliament, which is where the matter would rest because there would be no possibility of its being taken any further. As the hon. Gentleman said, the amendment would completely remove any direction-making power from the UK council. We disagree on whether the UK council should have such a reserve power, and his amendment would kick the issue into touch, which would not be sensible. These disputes must be resolved within a proper framework.

The hon. Gentleman's argument on the use of the term ''desirable'' should be placed in the correct context. Whatever word we chose, it would be for the UK council to decide whether the threshold was met. It would be for the council to decide whether the word was ''necessary'', ''desirable'' or ''essential''. In approaching any decision, the council would have to act reasonably on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system. This is genuinely a case where the hon. Gentleman and I take a different view. I am sorry that I have been unable to persuade him of our true intentions in relation to clause 25(2).

 
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