Health Committee,

Meeting date: Tuesday, May 11, 2004

Official Report 202KB pdf

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Subordinate Legislation

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Health Professions<br />(Operating Department Practitioners and Miscellaneous Amendments)<br />Order 2004 (draft)

Agenda item 2 is subordinate legislation. I welcome the Minister for Health and Community Care, who is accompanied by Robert Marr and Scott Miller from the Executive.

Paper HC/S2/04/13/1 has been circulated to members. The committee is asked to consider the draft Health Professions (Operating Department Practitioners and Miscellaneous Amendments) Order 2004.

No comments from members have been received in relation to the instrument in advance of the meeting, but if any member wants clarification on anything, they can ask for that now and Executive representatives can respond. However, we are not in debate.

Earlier, I raised a point with the convener relating to a procedural matter. What options do we have today? The Subordinate Legislation Committee has alleged that the instrument is not correctly written.

We can move to a vote. The minister will move the motion and members will be able to vote on it, whether we debate it or not. [Interruption.]

I take it that you are not referring to the Scottish statutory instrument that we are considering under the affirmative procedure, on which the Subordinate Legislation Committee made no comments. The instruments that we will consider under the negative procedure are those on which the Subordinate Legislation Committee made adverse comments. I take it that your point is not about the affirmative instrument.

No, it is not.

I want to ask a question about the affirmative instrument—the one to do with the health care and associated professions.

I am sorry. Which SSI are you talking about?

The draft Health Professions (Operating Department Practitioners and Miscellaneous Amendments) Order 2004. Is that the right one?

Yes.

Under the heading "Issue" on page 1, paragraph 1 of the full regulatory impact assessment says:

"Health professionals known as Operating Department Practitioners … have a direct impact on patient care as they carry out tasks such as giving anaesthetic drugs, closing wounds and other invasive procedures."

I would like the minister to elaborate on what that means those people would be doing.

Can you point us to the right page?

I quoted from page 1 of the full regulatory impact assessment; the relevant part is in paragraph 1.

I am sorry—I am being very dim. What page of the papers is that on?

The full regulatory impact assessment is on the sixth page of the papers that we have.

Oh yes, I see it. It is on another sheet.

I wanted the minister to provide clarification of what he thought the operating department practitioners would be doing.

Will I let Shona Robsion ask her question, too, or do you want to answer Dr Turner's question now?

Am I supposed to move the motion?

We will come to that, minister, but we are having some questions first, for clarification. I suspect that there will not be a problem; we just want an explanation.

My speech will explain some what Dr Turner has asked about. It would seem to be more sensible for me to move the motion first and then to have questions.

We will put Dr Turner's question to the side, as something that can be answered in the speech.

My comments and questions are about the negative instruments.

Our consideration of those will follow. We are just dealing with the affirmative instrument at the moment.

Does any member wish to debate the instrument?

No.

I invite the minister to move motion S2M-1232 and to address the question that has been asked.

The Health Professions (Operating Department Practitioners and Miscellaneous Amendments) Order 2004 will introduce statutory regulations for operating department practitioners. It will strengthen public protection for patients who undergo operations by setting and maintaining in law standards of practice, training and conduct for that group of health care staff. It will bring ODPs in line with their medical and nursing colleagues who work in the same area.

All the United Kingdom health departments take seriously the need to introduce statutory regulation for operating department practitioners, whose work—as with the work of all health care professionals—has a direct impact on patient care. Through the order, we propose to extend the current system of regulation of health professionals to operating department practitioners by bringing them under the Health Professions Council.

The order was the subject of three months' extensive consultation—from August 2003 to November 2003—and I am glad to say that it attracted broad agreement. A small number of changes have been made along the way.

Just before I move the motion, I point out that I have two pages of material that defines the role of operating department practitioners. I do not know whether I can read out all of that in response to Jean Turner's question; I think that the role of operating department practitioners is fairly well established.

If you sent that information to me, I could pass it to committee members for clarification.

Motion moved,

That the Health Committee recommends that the draft Health Professions (Operating Department Practitioners and Miscellaneous Amendments) Order 2004 be approved.—[Malcolm Chisholm.]

I said that no one wanted a debate, so it would be improper to open up the motion to debate. The minister will send us a response in full detail.

Can I ask a question?

You can ask a question, but nobody wanted a debate.

Could the minister put his answer in writing?

I have just asked for that to come to me; I will pass it to you.

Motion agreed to.

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General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 (SSI 2004/163)<br />National Health Service<br />(Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations (SSI 2004/166)

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Food (Jelly Mini-Cups)<br />(Emergency Control) (Scotland) Regulations 2004 (SSI 2004/187)

Paper HC/S2/04/13/1 is relevant to agenda item 3, which concerns three statutory instruments that are subject to the negative procedure. The Subordinate Legislation Committee had no comment on SSI 2004/187, but it commented on SSI 2004/163 and SSI 2004/166. Those comments have been circulated. No members' comments have been received and no motions to annul have been lodged.

A member has already alluded to a question that he might ask the minister. As the minister was not given notice, I will understand if he does not want to take questions, but if he is prepared to do so, I will allow members to ask questions.

I am aware of the general problems, but I do not know the details, so it is unlikely that I will be able to answer detailed questions. Many drafting issues have been raised and I apologise for a situation that I regard as being totally unacceptable. The matter has not passed my desk; it is for lawyers. However, I apologise on the Health Department's behalf. I cannot guarantee that such issues will not arise again, but I would be most concerned and upset if they did.

Are you content to take questions?

I will listen to the questions, but I do not know whether I will be able to answer them.

I apologise for not submitting comments in advance, but the minister has acknowledged clear concerns from the Subordinate Legislation Committee about the drafting of the General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004. The committee says:

"there is a particular need for care in the drafting of NHS legislation which is already extremely complex and difficult to follow. The user should not have to undertake an added burden of first identifying that an error has been made and then attempting to construe from the context the real intention of the provision in question. The Committee therefore hopes that the Order will be amended appropriately without delay."

The committee makes further comments on the order. It also comments on the National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations, but most of its comments are about the order on section 17C agreements.

The Subordinate Legislation Committee says clearly that the Executive has failed to follow proper legislative practice and the minister has acknowledged that. What will happen to rectify the situation? Can SSI 2004/163 be redrafted, as that committee recommends? What will be done to fix the problem?

To be safe, I must say that I will write to the member, but I imagine that the situation can be corrected. There is little that I can do other than ensure that SSI 2004/163 is corrected and, in so far as I can, ensure that the situation does not happen again. The only excuse that is being offered is that a lot of time pressure was faced. The situation is obviously unsatisfactory, so I will not excuse it.

Shona Robison has covered the order. As for SSI 2004/166, the minister has accepted that the regulations were defectively drafted but, as discussed with the Subordinate Legislation Committee, will you confirm that you will take steps to ensure that the explanatory note is amended to reflect the content of the regulations? That was the Subordinate Legislation Committee's hope, so can you now give us firm assurances that that will happen?

I will certainly undertake to do that.

Paragraph 18 of the Subordinate Legislation Committee's report has a question mark over the vires of article 94 of SSI 2004/163. We must make a decision one way or another about the order, but there is doubt about whether it is a legitimate piece of legislation. Unlike the convener, I am not a lawyer, but I wonder what the parliamentary rules are about our taking the order any further. I suppose I am asking for advice. Perhaps we can simply ask the minister whether he would guarantee to provide a redrafted order and put the system on hold until he gets the appropriate people to deal with the order and correct it. We can hardly agree to pass it when there is doubt about its status in law and about whether it will achieve the purpose for which it was intended. I am not making a personal attack on the minister—he has acknowledged that there is a drafting problem. However, we seek assurance that the order will be corrected before it is put before the Parliament.

My understanding is that there are two issues. I do not accept that there is a vires issue with the order—there is genuine disagreement between the Executive and the Subordinate Legislation Committee on that issue. Obviously, we take the view that the order is consequential on the Scottish legislation, which is the Primary Medical Services (Scotland) Act 2004. That is a different issue from the drafting errors. That is the point that I am making.

Thank you, minister. Can you confirm that, once you have had another opportunity to consider the instruments, you will write back to the committee to advise us whether the instruments are being withdrawn or whatever? I presume that you will also address the Subordinate Legislation Committee. I note that it reported to you on 6 May.

I apologise, but the only issue for us is the drafting. There are no substantive issues for us over and above the drafting issues, because we take a different view on the vires issue, which would be—

I was not addressing the vires issue. I meant the drafting. Does what you say mean that the SSIs have to come back? They are obviously being redrafted in different words. Do they go back to the Subordinate Legislation Committee?

I do not know. I cannot answer that question.

Perhaps someone could clarify that for us and for the Subordinate Legislation Committee. Thank you very much, minister.

As far as the Health Committee is concerned, you want to see redrafted instruments before you pass them. Is that what you are saying?

Yes.

I am sorry. I am just asking for clarity so that I know—you want the instruments to be redrafted correctly and then you will deal with them.

I think that would be in the interests of you and of everybody, minister.

Okay. [Interruption.] I am told that a corrective order is being drafted. Is that okay?

That will simply come back through the process again to this committee.

I do not know about the procedure. That is up to the Subordinate Legislation Committee.

The clerk informs me that the order will come back to this committee, which is what we want. Is that all right?

Okay.

Thank you very much.

No motions to annul have been lodged in relation to the instruments. In respect of what the minister said, can I take it that the committee now does not wish to make any recommendation in relation to the statutory instruments, given the process that the minister advised us of?

Members indicated agreement.

Thank you very much.

We have dealt with all three negative instruments, including the jelly one.