Health and Sport Committee, 01 Apr 2009

Meeting date: Wednesday, April 1, 2009

Official Report 239KB pdf

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Subordinate Legislation

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Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Draft)

For item 3, I welcome the Cabinet Secretary for Health and Wellbeing and her officials Catherine Clark, head of regulatory unit, and Beth Elliot, solicitor. I invite the cabinet secretary to make some opening remarks.

I should inform the committee that I have just been advised that the order went through the relevant committee in the House of Commons in 13 minutes, so you have a record to beat. I am not sure whether you will choose to beat it by being quicker or by taking more time. I will leave that up to you.

As a pre-emptive strike, I say that I think we will probably fail to be quicker than the House of Commons committee.

The order aims to improve patient safety through a range of measures that relate to the regulation of health care professions. Members will know that many of the measures were included in the white paper "Trust, Assurance and Safety: The Regulation of Health Professionals in the 21st Century". The white paper followed some high-profile cases, including that of Harold Shipman, that highlighted public concern and some doubts about the impartiality of the regulators and threatened to undermine the public's trust in our system of professional regulation. The reforms in the order aim to enhance public confidence in the regulators' ability to protect the public and deal with poor professional standards.

The order amends framework legislation for the regulation of dentists and dental care professionals by the General Dental Council, the regulation of pharmacists and pharmacy technicians by the Royal Pharmaceutical Society of Great Britain, and the regulation of professions that are regulated by the Health Professions Council. Those regulators all operate in devolved as well as reserved areas. Similar changes have already been made to legislation for the health care regulators that operate only in reserved areas.

Other provisions introduce regulation for practitioner psychologists throughout the United Kingdom and extend the regulation of pharmacy technicians to Scotland in the interest of patient safety. UK-wide regulation aids the cross-border flow of staff and enhances public understanding.

Finally, I highlight a couple of miscellaneous amendments in the order. First, it makes changes to the Protection of Vulnerable Groups (Scotland) Act 2007 and its English equivalent, and to a range of fitness-to-practise rules for health profession regulators. Those changes will ensure that there are appropriate exchanges of relevant information and that regulators can remove registration from anyone who is barred from working with children or vulnerable adults.

Secondly, the order makes changes that will enable the registration of suitably experienced people as pharmacists and enhance prescribing rights for registrants in emergencies such as pandemic flu.

All the measures are supported by the regulatory bodies that are covered by the order. I am happy to take any questions that the committee may have.

I remind the committee that this is an evidence session, so the civil servants can participate. After the evidence session, we will move on to the debate, at which point they cannot participate.

On page 51, just above the heading "Other changes relating to the regulation of pharmacists and pharmacy technicians", the explanatory note states that the order contains

"a new requirement to submit accounts to the Auditor General for Scotland (paragraphs 11 and 12 of Schedule 2)."

I cannot find that requirement in those paragraphs. There is a passing reference on page 16 of the order, in the paragraph entitled "Amendment of article 46", which extends the provision to include the Auditor General for Scotland. I am sorry that the question is slightly technical.

The order imposes new reporting obligations on the regulatory bodies: to have strategic plans and to account for those to Parliament. We will come back to the issue once my officials have found the cross-reference that you seek.

I raised the issue first because I realised that I might not get an immediate answer. I could not find the reference, so it will be interesting to see whether you can.

I have several other questions. I welcome the order, which is part of a process of restoring public confidence in professions and ensuring that they are appropriately regulated—hopefully, not overregulated. However, I have received representations from two groups—I do not know whether other members have, too—that are not included in the regulations. Could the cabinet secretary indicate whether she has discussed those groups with colleagues at UK level?

The first group is physiologists, who include cardiac physiologists, gastroenterological physiologists and neurophysiologists. There is a whole tribe of physiologists, if I may use that term—I cannot think of another collective noun for physiologists.

I do not think that you can settle for "tribe".

I was half apologising, because I could not think of a better name for a collection of physiologists. If someone can come up with one, there may be a prize for them. The group has considerable and increasing clinical contact with members of the public. There is agreement in principle that it should come under the provisions in the order that deal with allied health professionals, but there has been no movement on the issue for the past two and a half to three years. Is there likely to be any such movement?

I know less about the second group from which we have received representations—an independent group of dental technicians—but the cabinet secretary has received correspondence on the issue. The group feels that it will be excluded in some way by the order. Has the cabinet secretary had a chance to ascertain whether that is the case and whether the issue is likely to have a significant effect on our already stretched dental services?

Convener, you will be glad to hear that I have only one more question, in view of the time challenge that the cabinet secretary set for us.

I have already said that we will take longer than 13 minutes.

I welcome the fact that there will be special arrangements for pandemic flu and presume that those will apply to all the regulated professions. In the event of an outbreak of pandemic flu, it will be of crucial importance to bring back into play those who are retired or who were previously deemed to be fit to practise but are no longer practising. How comfortable is the cabinet secretary with the way in which the matter is being pursued? Will the individuals concerned have to continue to pay a registration fee—as is now the case for doctors—to maintain themselves on the register, or will they be able to do so, despite being retired, without paying a fee?

Richard Simpson almost beat the record single-handedly there. Before I answer his questions, I award him the prize of the day for his eagle eye. The cross-reference in the explanatory note is incorrect—it should be to paragraphs 13 and 14 of schedule 2. We will arrange for that to be corrected by reprinting the document. Well done for spotting the error.

I agree with the general premise that, although the order is welcome, we should pursue appropriate and proportionate regulation, not regulation for regulation's sake—it is about protecting the public.

As far as I am aware—I can double-check this and get back to Richard Simpson on it—there has been no specific discussion on regulating physiologists in this context. Richard Simpson referred to neurophysiologists. There has certainly been some debate about some of the sub-specialties of psychology; neuropsychology is one area where representations for registration have been made. However, it has been decided not to go for registration in the case of the sub-specialties. I am not aware of discussions on physiologists.

As Richard Simpson rightly indicated, the order does not include dental technicians, who are otherwise known as denturists. The legal change in relation to dental technicians has already been made, under the previous Administration, in fact. The present Administration has been working to ensure that educational provision is in place to allow dental technicians to obtain the registration that they now need. The Minister for Public Health has been pursuing that matter. Courses are in the process of being approved by the General Dental Council, and I am happy to provide Richard Simpson with more information on that.

Arrangements for the registration of retired professionals in the event of pandemic flu will apply to pharmacists under the order. Arrangements are already in place for doctors and, I believe, for nurses, too. People who register in an emergency will not have to pay a registration fee. That has already been determined under a previous order. I think that that covers Richard Simpson's main questions.

That was very helpful.

Before we move on, I would like to discuss issues to do with psychologists. I note that the British Psychological Society is very content with the order; I understand why, as we would not want people who turn out to be charlatans to be able to set themselves up saying, "I'm a psychologist." The provisions on that are very agreeable.

I notice from the explanatory note that the Association of Educational Psychologists is going on to the Health Professions Council register for the first time. Like Richard Simpson, I have received representations—very late in the day—from the Scottish division of the Association of Educational Psychologists. Its members are concerned that they are going on to the HPC register despite the fact that they feel that they have more in common with education. I understand that they are currently in discussions with the General Teaching Council for Scotland about being approved and registered with it. Was the minister aware of that, and could she comment on it? I understand that not all educational psychologists have to have teaching qualifications, as was previously the case, but there is a sense among members of the Scottish division of the AEP that they really belong in the education system, not with health professionals.

I am aware of that point of view. I am also aware of the opposite point of view, which is held by some educational psychologists, who would say that they want to come under the regulation that is governed by the order. The matter relates to the point that Richard Simpson made about ensuring appropriate and proportionate regulation, not regulation for regulation's sake. There is an argument that all psychologists should be regulated, but the order does not do that. Some psychologists work purely in the academic sphere and have no direct relationship with patients or the public. We have taken the decision that it would not be appropriate or proportionate to regulate them.

Educational psychologists are different. They are involved in professional-client relationships, and they provide services to the public—often children, in the case of educational psychologists. Those services are about improving the health and wellbeing of individuals. For that reason—because of their direct professional public relationship—and given that the driving force behind the order is public safety, it is appropriate to regulate educational psychologists. They are one of the seven divisions that the British Psychological Society currently uses.

I am grateful to the minister for putting that on the record. That will be useful in relation to any discussions that the organisations in question are having.

In her opening remarks, the cabinet secretary mentioned the case of Dr Harold Shipman. Could she tell us how the order will help to prevent a Harold Shipman in the future? A lot of people think that a Harold Shipman might actually end up on the Health Professions Council. How will regulating the profession in the way that is set out stop someone like Harold Shipman in the future?

The Health Professions Council does not regulate GPs, but some of the concerns that were raised in the wake of the Harold Shipman case and other high-profile cases centred on the independence and impartiality of regulators. Because of the composition of the regulatory bodies and the route that people took to being on them, there was a feeling that the bodies were perhaps too much in favour of the profession rather than regulating for the public—although "biased" would be too strong a word.

In part, the changes are to the governance arrangements for the regulatory bodies. For example, people will no longer be elected by the professions to the bodies; instead, they will be appointed by the Privy Council, although in practice that will be delegated to the Appointments Commission. The bodies that we are talking about will have on them someone who lives or works entirely in Scotland. The aim is in part to ensure that the bodies are put together in a much more independent and impartial way. Further, some of the duties that are placed on councils, such as the duties to engage with stakeholders, to have clear strategies in place and to report and be accountable to Parliament, will help to ensure that the operation of the bodies is firmly about the protection of the public.

I seek clarity on one issue. When chiropodists or podiatrists had to register, some practising chiropodists who did not have the general qualifications and could no longer call themselves chiropodists advertised their services as foot care specialists. If we apply that analogy, is it possible that people who are not registered could advertise their services in a different way? For example, I am thinking about services such as cognitive behavioural therapy, psychological support and counselling. Will someone who is not registered be able to offer psychological support and help simply by not calling themselves a psychologist?

As I said in response to Richard Simpson, some of the sub-specialities of psychology are not included in the provisions. Mary Scanlon raises a legitimate point. We must be vigilant and ensure that the situation that she describes does not arise. The situation with psychology is similar to the one that Mary Scanlon mentioned with chiropodists, in that there is a group of psychologists called chartered psychologists who are currently given practising certificates by the BPS, but who do not fall under one of the seven divisions. Therefore, they will not automatically move to registration under the Health Professions Council, but routes are being made available to allow them to register, with a three-year window in which to do that.

Irrespective of the measures, someone will still be able to practise and give psychological support if they advertise as a counsellor or cognitive behavioural therapist.

Yes, because only the titles that are in the order are protected—for psychology, there are seven divisions. Somebody who does what the member describes and does not use a protected title would not be regulated. We must be vigilant in case a problem arises with people who are not regulated advertising services when it is perceived that they should be regulated.

There could also be misrepresentation.

Indeed.

I have a brief supplementary question on the issue that Richard Simpson raised about physiologists. You said that that matter had not been raised with you. One might understand that, in that you are not responsible because the bodies are organised on a UK basis. Nevertheless, representations have been made to parliamentarians by physiologists who are practising in Scotland. By the nature of their profession, those people have relationships with patients or clients, so any unprofessional or improper practice could lead to harm. The process of registrations is moving apace, but physiologists see a danger that they will be regarded as second-class citizens. They are in a category in which harm is possible, yet they will not be properly regulated.

Would you be able to raise the issue at UK level, rather than waiting for the issue to be raised with you? I understand that the process has been discussed, but that it has gone completely flat for the past two years.

I did not say that the issue had never been raised with me, because it is quite likely to have been raised with me. What I said was that I was not aware of discussions having taken place about the inclusion of physiologists in this order or in related orders. I will be more than happy to consider the points that members are making and to consider whether we should be raising the issue proactively.

The door of regulation will never be closed; different groups will be able to come within the regulatory framework. As changes are made in the way in which services are delivered, we will have to keep an open mind on regulation. I therefore have no objection to giving more consideration to the points that have been raised.

As I understand it, groups of people actively wish to be regulated.

Some of us were given a presentation in which we learned of individuals who had moved from board to board, who had now moved abroad, and who had repeatedly been guilty of malpractice, causing considerable damage and danger. Because there is no system of registration, the public are not being protected. Specific examples of that were given to us.

I appreciate the points that have been made about direct relationships between the public and practitioners but, as I understand it—and the doctors around the table will probably know better than I do—physiologists are considered to be scientists, so much of the discussion on the subject of regulation takes place in the context of physiologists being scientists. The modernising scientific careers programme is under way. Discussions are taking place with UK departments other than the Department of Health about the possibility of regulation.

Thank you, that was all very helpful.

Following those questions, we come now to the formal debate on the order, and I invite the cabinet secretary to move motion S3M-3654.

Motion moved,

That the Health and Sport Committee recommends that the draft Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 be approved.—[Nicola Sturgeon.]

We can have a debate, but I take it that, having asked questions, committee members are happy not to do so.

Members indicated agreement.

Motion agreed to.

That took 23 minutes and 14 seconds, but only because we are very thorough.

Well done.

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Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Amendment Regulations 2009<br />(SSI 2009/90)

The regulations give providers of a limited registration service an element of discretion in considering whether someone with a conviction is fit to manage or be employed in such a service.

No comments have been received from members and no motions to annul have been lodged. The Subordinate Legislation Committee drew the regulations to our attention on the grounds of a failure to follow normal drafting practice—we have heard that before—and two cases of defective drafting—we have also heard that before—that are not thought likely to affect the validity of the regulations.

Are we agreed that the committee does not wish to make any recommendations in relation to this instrument?

Members indicated agreement.

That concludes today's business. Thank you very much.

Meeting closed at 12:24.