Health and Social Care Bill
Agenda item 2 is on the United Kingdom Health and Social Care Bill. I welcome Nicola Sturgeon, the Deputy First Minister and Cabinet Secretary for Health and Wellbeing. She is accompanied by Paul Martin, the chief nursing officer and interim director for workforce with the Scottish Government, and Kathleen Preston, a Scottish Government solicitor. Ms Cowie, a professional adviser on regulation and workforce standards, will be with us shortly, but she has got stuck somewhere in getting through the Parliament's pass system—I know how that feels.
I ask the cabinet secretary to make a few opening remarks, after which members may ask questions, if appropriate.
I thank the committee for giving me the opportunity to explain the provisions of the Westminster Health and Social Care Bill for which we are seeking consent. I ask for the committee's indulgence while I go through the various provisions.
The bill's main provisions include the creation of the care quality commission, public health protection measures, the health in pregnancy grant and changes to the regulation of the health care professions. Only the last of those provisions impacts on devolved matters. The regulation of health care professions that are not included in the reservation in the Scotland Act 1998 is devolved. Currently, regulated professions that fall into that category are operating department practitioners, dental nurses, dental technicians, clinical dental technicians and orthodontic therapists. However, committee members should note that the number of professions will increase over time as more are introduced to regulation.
The bill's provisions for the regulation of the health care professions are an important step forward in implementing some of the policies in "Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century". As members will be aware, that report was part of the UK Government's response to the fifth report of the Shipman inquiry and its policies are aimed at improving patient safety and the quality of the service that health care professionals provide. All four UK countries are committed to making progress on the white paper in a spirit of partnership with our stakeholders and in a way that is sensitive to each country's needs. The bill will be followed by subordinate legislation and associated guidance as work progresses in UK and Scottish working groups.
A legislative consent motion is required because some of the bill's provisions apply to all regulated professions, including those for whom regulation is devolved, or to all regulators, two of which—the Health Professions Council and the General Dental Council—regulate in devolved and reserved areas. Other provisions confer new powers on the Scottish ministers or allow changes to be made to acts of the Scottish Parliament.
The provisions that the legislative consent memorandum addresses that change current provisions in the Health Act 1999 and are relevant to the devolved elements of regulation include: new section 60A, which requires all health care regulators to apply the civil rather than the criminal standard of proof in fitness to practise proceedings; and amendments to section 60, to enable an order in council to be made in due course to allow all the regulatory functions of the Royal Pharmaceutical Society of Great Britain and the Pharmaceutical Society of Northern Ireland to be transferred to the planned new pharmaceutical council. They also include: amendment to schedule 3 to clarify that when an order for the regulation of any profession is issued for consultation, that consultation is to be with all relevant representatives of all the professions that are being regulated; further amendment to schedule 3 to ensure that only the regulatory bodies and the new health professions adjudicator can administer procedures relating to misconduct, unfitness to practise and similar matters; and the repeal of paragraph 7(3) of schedule 3, which allows a function conferred on the Privy Council to be exercised by a different person.
There is also a provision to insert new section 26A into the National Health Service Reform and Health Care Professions Act 2002. The section provides the Scottish ministers with new powers—to request the Council for Healthcare Regulatory Excellence for advice on any matter connected with a health care profession, and to require the council to investigate and report on related matters.
Finally, provisions will ensure that new regulation provisions are implemented as soon as possible, by ensuring that acts of the Scottish Parliament can be repealed or amended by orders in council made under section 60 of the 1999 act, subject to consultation with the Scottish ministers, where that is incidental to or consequential on a reserved purpose. The bill also allows more substantive amendments to be made to acts of the Scottish Parliament through section 60 orders laid before the Scottish Parliament as well as Westminster, where such amendment or repeal is not merely incidental to or consequential on provisions relating to reserved areas.
I invite the committee to support the measures that I have outlined, which are addressed by the legislative consent memorandum. I am more than happy to provide further clarification of any points and to answer members' questions.
I have a general question. The committee is not familiar with the bill, which is a Westminster bill. You said that in future, other professions will be covered by the bill. I know that in the Highlands, some people who practise chiropody or podiatry are well qualified and do an excellent job, but there are other people who are less qualified and call themselves foot care specialists. If people had to choose between going to a podiatrist and a foot care specialist, many of them would go to the latter, although they are less well qualified. In homeopathy, too, some practitioners are very well qualified and others are less well qualified. How will the bill overcome those difficulties and give the patient confidence that they are going to someone who is fit to practise and is knowledgeable in their field?
Essentially, the aim of the bill is to ensure patient safety and public confidence in professions that are regulated. I made the point that other professions may be subject to regulation in the future. The general provision is that the regulation of professions that were subject to regulation when the Scotland Act 1998 came into force is reserved, but that regulation of those that have become subject to regulation since then is devolved. That provision will apply to any professions that become subject to regulation in future.
The bill includes a number of provisions that relate to professions that are already regulated. Section 60 of the 1999 act makes it possible for further professions to be made subject to regulation. At the moment, it would be inappropriate for me to pick out professions that may become subject to regulation in future, but the bill provides for such a procedure.
I will stick with the example of podiatry, as I know quite a lot about it. When future regulations are laid, will the committee have the opportunity to discuss them, although this is a Westminster issue?
If future regulations are more than incidental, they will be laid before the Scottish Parliament. It is open to the committee to discuss generally what professions should be regulated and in what circumstances. I will always be interested in hearing the committee's views on that matter.
Putting to one side the issue of podiatrists, can you assure me that such matters will be considered, so that patients can have more confidence that they are going to someone who is qualified to practise?
Yes, if the profession concerned is regulated. The bill raises the standards for such professions.
Paul Martin (Scottish Government Chief Nursing Officer Directorate):
Section 60 will require a formal consultation period on each profession or aspirational profession that comes up. The requirement for engagement and consultation is therefore more robust under the new arrangements than before.
I think that our papers say that the consultation period will be three months.
I welcome Ms Cowie to the meeting. She has got here after great efforts.
I am interested in the professions for which regulation is our responsibility. Although I understand the benefits of making regulation a United Kingdom issue, we are responsible for people such as dental nurses, and if a dental nurse is accused of a crime in his or her ordinary life—even a small crime for which there might be only an admonishment or a small fine—the standard of proof is "beyond all reasonable doubt". However, if a complaint goes to the regulatory body—as will happen under the proposals—that same dental nurse will be subject to a civil rather than a criminal standard of proof, therefore they could lose their job on the balance of probabilities, rather than based on a standard of proof that is beyond all reasonable doubt. Is that a change from the present situation? If so, are you happy with it?
The regulators of devolved professions already use the civil standard of proof. To that extent, there is no change.
There is widespread consensus, although perhaps not universal consensus, that the civil standard of proof is appropriate. We are not talking about criminal proceedings; we are talking about disciplinary proceedings. That is what makes the civil, not the criminal, standard of proof appropriate.
The bill will ensure greater consistency. The regulators in devolved areas already use the civil standard of proof, as do many other regulators. The bill will ensure consistency across the spectrum of regulators.
It may be in our papers, but I am not sure what the appellate procedure would be. Information on that might allay Ian McKee's fears.
Each regulator establishes its own appeal mechanisms. The minister has rightly identified the current mix, but part of the benefit of applying civil standards of proof to each of the regulators will be to bring clarity to the appeal mechanisms across all regulators.
I take it that we are comfortable that what is being proposed is compatible with the European convention on human rights.
Absolutely.
Thank you, cabinet secretary.
Do committee members agree that a draft report, produced on the basis of today's evidence, should be considered in private at our next meeting?
Members indicated agreement.