Health and Community Care Committee, 19 Sep 2001

Meeting date: Wednesday, September 19, 2001

Official Report 154KB pdf

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Subordinate Legislation

Under item 3 we have an emergency affirmative instrument to debate. The Deputy Minister for Health and Community Care is with us this morning. The Subordinate Legislation Committee has nothing to report on the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 5) (Scotland) Order 2001 (SSI 2001/295). I ask the minister to speak to the motion, if he wishes, and move it.

The Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 5) (Scotland) Order 2001 (SSI 2001/295) bans the catching of king scallops in waters off the west coast, because of the presence of amnesic shellfish poisoning at levels above those that have been set by Europe. As members know, this is a consumer safety measure, as scallops containing high levels of the toxin can cause illness in humans, ranging from dizziness and nausea to extremes of amnesia, coma and death where a large amount of toxin is ingested.

I move,

That the Parliament's Health and Community Care Committee, in consideration of the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 5) (Scotland) Order 2001 (SSI 2001/295), recommends that this order be approved.

Motion agreed to.

We move now to negative instruments. The first is the Specified Risk Material Amendment (No 3) (Scotland) Regulations 2001 (SSI 2001/288). We have some people from the Food Standards Agency Scotland with us to answer questions. Mary Scanlon raised concerns about the regulations. Mary made her questions available and they have been responded to. Do the representatives from the FSA wish to speak to the regulations or just to take questions from the committee?

I will briefly introduce myself and my colleague. My colleague Carolyn Ferguson and I are from the Food Standards Agency in Aberdeen. We are part of the team that deals with meat hygiene regulations, specifically the BSE-related controls, which is why we are here to discuss the statutory instrument. We sent a written reply to Mary Scanlon's questions and we are happy to address any further points that she has.

I have brief supplementaries to my original questions. My first question was to ask for an assurance that specified risk material—SRM—is no longer being imported into Britain and Scotland from the rest of the European Union and other countries. I am told by colleagues in the farming industry that already this year there have been nine cases of specified risk material coming into the country and charges being brought. I seek your reassurance on that. Today's Daily Mail states:

"a Government BSE expert said he would not eat meat products from France, Germany, Spain, Italy and Greece."

Is there cause for concern, or is the importation of SRM strictly under control? Can you reassure people in Scotland that they are no longer likely to pick up CJD?

The SRM controls are now applied Europe-wide under EU legislation, which has significantly improved the enforcement of protection for consumers in the UK. Mary Scanlon referred to the detection of SRM by the Meat Hygiene Service.

Since the beginning of the year, there have been stringent checks on all imported carcases. There have been 19 checks, including one in Scotland. Those checks are having an effect at European level. They have resulted in business in plants in some member states being suspended to allow for staff retraining and new operational procedures that will ensure that the plants follow the rules correctly. As a result of the checks, only four cases of SRM have been detected since 1 May, whereas nine cases were detected in March. The Food Standards Agency continues to monitor for SRM and other problems from imported meat from all sources, but the agency's view remains that, on balance, the risk from imported meat is not significantly different from the risk from home-produced meat.

An additional problem, which has been addressed for meat products, is that it is more difficult to ensure that we are not importing material from animals that are older than 30 months. However, that situation is also now greatly improved, because of European Union rules that require all animals over 30 months old that go into the food chain in Europe to be tested for BSE. The most risky cases are being removed from that chain. The agency's view is that the risk from imported meat products is similar to those from home-produced meat of three or four years ago, after the application of the feed ban in 1996.

I know that we have a huge agenda today, but I am concerned about the fact that France has already had 160 cases of BSE this year. I have sought your assurance and I hope that we can move on from there. However, it is important from a public health viewpoint that consumers are reassured.

My second question was to ask the minister when beef imported from the EU will be properly labelled as such, so that consumers who are aware of the health hazards of imported meat can make an informed choice. I understand that such labelling will begin in January next year. I notice that there is to be a label for member states. Will we have a Scottish label as well as a British label?

As I understand it, the agriculture departments, rather than the FSA, cover that legislation. However, I believe that the labels will have on them the member state, because the legislation is European. Arrangements that are separate from that legislation will establish local labels, including Scottish labels, and various ways of registering local-brand labelling.

My third question is about the higher level of CJD in Scotland and the north of England. You said that you are trying to trace where that CJD originated and what products were involved. You say that you are talking to such organisations as the Scottish Meat Trades Federation. Are you also talking to the British Meat Trades Federation, the food processors and the supermarkets? Will you eventually be able to trace where the meat that led to the increased incidence of CJD in Scotland and the north of England came from?

The agency is talking with all the trade federations throughout the UK that are involved in the matter. It is difficult to say whether we will discover the full story, because we are talking about events that happened 10 to 15 years ago. The agency is in the process of appointing researchers who will talk to people in the industry and people who have retired from it who might know how it operated at the time in question. We hope that that will provide much more data for use by the scientists who are investigating the incidence of variant CJD. However, it would be wrong to suggest that a full answer will be possible. The industry has said that it will co-operate fully and the FSA will follow that up.

My final question is that, given the higher incidence of CJD in Scotland and the north of England and the difficulties in tracing where it came from, is it still safe to eat processed meat such as sausages and pâté?

Nothing—as the Food Standards Agency says—is absolutely safe, but there is no reason to believe that there is a significant risk from the products you mention. Enormous changes have occurred in BSE-related controls since the 1980s. Since 1996, the over-30-months scheme has removed the vast majority of risky animals from the food chain and specified risk controls have been improved since then. There is no reason to believe that inquiries into what was happening 10 or 15 years ago have changed the view that meat is as safe to eat as it was before this issue arose.

I have a question on a technical point. The Subordinate Legislation Committee commented that the regulations were defectively drafted because a relevant enabling power had been omitted. Can you comment on that?

We take our advice on the detailed drafting of legislation from the office of the solicitor to the Scottish Executive. I am not prepared to go further into the argument between the lawyers as to what should or should not appear on the front of the instrument.

Thank you for your time.

As I said, the Subordinate Legislation Committee commented that it believes that the negative instrument was defectively drafted. The Rural Development Committee looked at the matter yesterday and had no comment. No motion to annul has been lodged and so we cannot take further action on the instrument. The recommendation is that the committee does not wish to make any recommendation in relation to the instrument. However, we duly note the points that were raised by Mary Scanlon in the discussion. Is that agreed?

Members indicated agreement.

We move on to the Nursing Homes Registration (Scotland) Amendment Regulations 2001 (SSI 2001/215). Liz Lewis will answer some points that Mary Scanlon wants to raise on the regulations, which were originally circulated to members on 16 August.

I have a brief point, which I notified to the clerk. Under the heading "Financial Effects"—I do not know whether I am reading this in context—it says:

"Local authorities do not pay registration fees for their own residential care homes."

I want clarification of that.

That is what happens under the present system. There is no statutory requirement for local authority care homes to be registered or inspected. Most local authorities inspect their homes, but they do not pay themselves fees for that process. As the committee will know, under the Regulation of Care (Scotland) Act 2001—which we looked at earlier in the year—all local authority care homes will be regulated by the new Scottish commission for the regulation of care on the same basis as the care homes that are provided by other providers. At that point, there will be a level playing field for all providers.

I presume that that answer also deals with the Subordinate Legislation Committee's comments that

"providing for the charging of a fee on first registration for "annual continuation" of a registration, in addition to a registration fee, represents at best an unusual or unexpected use of the power."

Yes. That refers to the fees for nursing homes, which are collected by health boards at the moment. There is separate legislation for the nursing homes and the residential care homes and the two systems have operated differently in recent years. However, once the new system comes in on 1 April there will be one system for all care homes and services.

I want to ask about the variation in conditions of registration, but I should declare an interest before I start. I am still director of a nursing home company that operates in England. The regulations do not apply there. Nevertheless, I have an interest.

Regarding the variation in condition of registration, is the registration fee charged when a nursing home applies for the number of registered beds to be altered?

Yes. The fee is also charged for any other changes that homes want in their registration certificate. The homes would apply to the health board to have the certificate changed or varied.

Has the Executive issued instructions for establishing a national basis for the process? I communicated with the minister some months ago about the fact that some registering authorities are employing variation in the number of beds as a way of managing staff ratios, and others are not. Perhaps they have not explained that clearly.

In some areas if the number of beds that are occupied drops, the number of staff that are required to man the beds drops by a ratio—there is a step-like reduction when occupancy levels drop significantly. In some areas, the health board authority will not allow that, but will require the registration to be changed every time that there is a change in occupancy and a change in staff numbers. That does not apply in the health service. If a health authority closes a ward and leaves it empty for some time, it is not required to maintain the staff levels. It is a ludicrous imposition upon private nursing homes and the voluntary and charitable sector.

The fee is going up again. Is it intended the fee increase will be accompanied with an instruction to the boards that the process should be identical everywhere?

The answer to that is no. An instruction is not going out, but the system introduced by the Regulation of Care (Scotland) Act 2001 was designed to ensure that there will be a consistent national system from 1 April. Those anomalies should not exist after that date.

Have you received representations about the increase in fees from any of those who are currently registered?

Yes. A consultation exercise has taken place; the letter asking for responses went out in February. We received more than 100 representations from a variety of responders.

Are they satisfied, after the negotiations that have taken place—chaired by Malcolm Chisholm—with the Convention of Scottish Local Authorities, care homes and the voluntary and charitable sector, that the increase in funding that is being provided will allow the increase in fees to be met?

As the committee knows, the increase in fees is a very small proportion of the total cost of providing a care home bed. The responses to the consultation came in much earlier in the year, before this became such a public issue and before the negotiations that Dr Simpson described had started. I would not like to speak for the care home owners as to whether they feel that what they receive is adequate to meet the increase.

We have not received any specific comments over the summer on this point. The discussion has moved on to other issues.

The fee for the revised certificate of registration, for example, is increasing from £18 to £60 for care homes. That is not an insignificant increase. The fee will not apply often, but such increases are not insignificant given the considerable concern in the voluntary, charitable and independent sectors about the adequacy of the funds that are being provided. Any increase, however marginal, adds to the burden.

That fee was increased to produce more consistency across the piece between nursing homes and residential care homes, so that an even bigger increase would not be needed from 1 April to bring together the two systems. That was partly a smoothing increase, if I may put it that way.

Would you welcome comments from care home owners now? I have had representations from some of the voluntary homes in Dundee, where a 70p increase in funding was given. When the fees are taken into account, and even with that increase in funding, those homes are now £40 a year worse off. There is concern, especially in the voluntary and charitable sector. Would you welcome feedback on the impact of the fee increase?

As Shona Robison knows, ministers indicated when the bill was under consideration that they would want to consider the impact of fee increases in deciding what was to happen for 2004-05. The level of fees had not been set. We are about to start consulting on what the fees should be from 1 April. There will be another opportunity this autumn for all organisations to respond on what the fees should be once the Scottish commission for the regulation of care is established. That will give voluntary and private organisations an opportunity to submit their latest views to us.

I would like some clarification. I understood that the fees were pretty well what was set out in the financial memorandum. Is Liz Lewis saying that those fees could be greater or smaller?

I am sorry—I am misleading the committee. The fees that we are consulting on this autumn will be as set out in the financial memorandum: a 10 per cent increase and a £10 per bed increase for care homes. That is what we will consult on. We always consult on what the fees should be before we make the regulations or orders.

But does the fact that you are consulting mean that you are willing to reduce the fees, or might you even increase them?

Ministers will not want to increase the fees above the level that, when the bill went through, they indicated they would set for 1 April. Once a consultation exercise is complete, they will always consider what people have said.

No motion to annul has been lodged, so the recommendation is that the committee does not wish to make any recommendation in relation to the instrument. Is that agreed?

Members indicated agreement.

We move to the Nurse Agencies (Increase of Licence Fees) (Scotland) Regulations 2001 (SSI 2001/216), which was originally circulated to members on 4 May. No comments have been received from members on the regulations. However, we have Liz Lewis with us, if anyone has any queries on them.

The Subordinate Legislation Committee commented that

"fee levels are a matter for the lead committee"

but drew the attention of the Health and Community Care Committee to

"the increases of fee levels provided for in this instrument, after such a long period without any staging".

The Subordinate Legislation Committee thought that that constituted

"an unusual or unexpected use of the enabling power."

Do you wish to comment on that?

As we indicated in the financial memorandum, it is right that the fees have not gone up since the relevant regulations were introduced. We were conscious that moving to full cost recovery for nurse agencies would mean an even greater percentage increase if we waited until 1 April and put it all up in one go. The intention was to try to alert and properly consult nurse agencies about what was on the cards, and to stage the fee increase that would be required. We could have left the increase until 1 April and the new system, but it seemed fairer to let people know. We were conscious that agencies are often unaware of what is coming until they have to pay an increased fee.

No motion to annul has been lodged, so the recommendation is that the committee does not wish to make any recommendation in relation to the regulations. Is that agreed?

Members indicated agreement.

We move to agenda item—

Sorry to interrupt, convener. I want to be clear about the Child Minding and Day Care (Registration and Inspection Fees) Regulations 2001.

Those regulations were sent to the committee in error—they are not for our consideration.