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Nursing and Midwifery (Amendment) Order 2008

Volume 702: debated on Wednesday 4 June 2008

rose to move, That the draft order laid before the House on 22 April be approved.

The noble Baroness said: My Lords, this draft order is the first in a planned series of affirmative resolution orders that will be brought before this House as part of the implementation of the White Paper Trust, Assurance and Safety. The aim of the reforms is to enhance public confidence in the ability of the healthcare regulatory bodies such as the Nursing and Midwifery Council to protect the public interest and deal with poor professional standards.

Public concern has been highlighted by a number of high-profile cases, such as those involving Dr Shipman and the nurse Beverly Allitt. Those cases led to a number of detailed inquiries—including the Shipman inquiry led by Dame Janet Smith—that have made a number of far-reaching recommendations. The order is part of the process of implementing those recommendations. It makes various amendments to the framework legislation for the regulation of nurses and midwives—the Nursing and Midwifery Order 2001.

The main changes relate to the governance arrangements of the NMC. They include moving the NMC from a partially elected to a fully appointed council, in response to the recommendation from Dame Janet Smith that professional interests should not unduly influence council members. Members are to be appointed by the independent Appointments Commission against specified skills and competencies. There will be provision for a separate constitution order to specify the numbers of lay and professional members and their terms of office, and there will be provisions with respect to the suspension and removal of members. We expect that the NMC will have seven registrant and seven lay members, making it smaller, more board-like and more strategy-focused.

There will be changes to the provisions relating to the NMC’s committee structure to make them less prescriptive. The changes were originally included in the Health Care and Associated Professions (Miscellaneous Amendments) Order, which was published for consultation on 22 November last year. In its response to that consultation, the NMC raised concerns about the timescale for making the changes, in particular about the difficulties for it if it needed to hold elections to its council in 2008. Each year, a quarter of the elected representatives on the council come up for re-election. The NMC asked if its provisions in the draft order could be brought forward in a separate order in time to avoid this summer’s elections, hence this order standing separately from the other orders, which are still to come.

The Government have similarly responded to requests to avoid elections made last year by the General Medical Council and the General Dental Council. We recognise that the cost and disruption of holding an election for council members who will serve at most one year of a four-year term would not be sensible. The order therefore includes provisions to cancel the elections that were due this year, which were for the elected representatives on the council in the English national constituency.

The order also makes a number of other miscellaneous amendments. Those worth noting in particular include the following. For the first time, the council’s annual report will have to include a description of the arrangements that the council has put in place to ensure that it adheres to good practice in relation to equality and diversity. The NMC will be able to give enhanced prescribing rights to more of its registrants in an emergency such as pandemic flu. The NMC will be able to strike off registrants who are barred from working with children or vulnerable adults when the new independent barring board is established. All those measures are supported by the NMC. I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 22 April be approved. 17th Report from the Joint Committee on Statutory Instruments.—(Baroness Thornton.)

My Lords, I apologise to the Minister. The clock ticked over on the second floor before I had a chance to get down to the Chamber. I heard most of what she said. I have read the order and the instructions that go with it, and I thank her for that explanation.

This is another one of those occasions when one says, “Oh no, not another reorganisation”. The impact of what is being proposed is far-reaching, and perhaps more far-reaching than one would think at first sight. To restructure the supervising body of any profession is not to be undertaken lightly. One might start by asking the Minister about the reconstitution of the council into a body of appointed members rather than elected members. I do not know whether this is in any way unique, but it seems to me that it is unusual for the Appointments Commission to be in a position of appointing professional people. My first question is, in terms of those who will be appointed, will the Appointments Commission use senior royal college members to act as adjudicators or judges of who is going to go forward? Who will it get to help with those appointments? Lay members are easier to appoint, because they have a completely different role to play, but professional members have a specific role. They will need to be people of the utmost quality. That needs to be carefully guarded.

The other thing that struck me was the constitution. I understand that will be covered by yet another order, and I presume that it will be drawn up only after the new body has been formed; or is it to be formed now in conjunction with the current Nursing and Midwifery Council, before it is abolished? Which comes first the chicken or the egg, in terms of the constitution?

I know that the Royal College of Midwives has had concerns about the cancellation of the elections this year for England. I am now less concerned. I understand that it has an issue with that, but it seems to me that if you are going to make a change as major as this, you will want to put new people in place as soon as you can.

I know that this is tied up with civil contingencies and all the problems associated with emergencies, but I found it rather odd to be picking out not-quite-registered members of the profession to be identified as being able to order drugs, or whatever was required. If we have an emergency such as a pandemic, it will require more than a few unregistered midwives to help with that. I suppose that other people will be used. Otherwise, this will be a strange and rather small addition to what has been proposed. My concerns are mostly about the appointment of the professional members and who will be appointing them. I would like to know a little bit more about those who will be involved if the emergency contingency was to happen—I hope that it never will.

My Lords, I, too, apologise for my rather breathless arrival in the Chamber; I had not realised that we had such a speedy Minister. The present situation is clearly unsatisfactory. I think that everyone agrees that 12 elected nurses and 11 lay members have proved to be a very cumbersome NMC. I think that there is general agreement that it should be reformed, and the Royal College of Nursing is very supportive of that. I have a few comments and questions.

First, a general comment: why does the new council have to be entirely appointed? I am seriously worried that everything in this country is run by quangos that have members appointed by the Appointments Commission overseen by the Privy Council, which is presumably overseen by the Government. I think I said a few weeks ago that the health service is a rather Stalinist organisation. It feels like that when everything is appointed and there is no element of election or the professions being able to choose their own representatives. I share the reservations of the noble Baroness on the Conservative Benches but urge the Government to take heed of this warning. We must not have an all-appointed country. They are keen on talking about devolving responsibility and power downwards yet they devolve that responsibility to bodies that have been appointed by themselves, directly or indirectly. That concerns me.

Secondly, there will be seven professional members on the new NMC. Will the Government ensure that there are general nurses, midwives and perhaps community nurses represented on the NMC? Community and district nurses in particular are going to be extremely valuable in the health service in the years to come because patients are admitted to hospital for a much shorter period. They should get representation on the NMC.

I have some concern about stopping the elections. It may be two or three years before the new council comes into being. Again, my democratic soul rankles at the fact that elections will be stopped. If we decided to change the way we elected our MPs, would you really tell all the MPs that they could stay on for a couple of years or so until the new system came in? I think not. It is better to have people elected even if only for a short time before the new arrangements come into play.

There is a valid concern from the midwives, too—that they may lose the Midwifery Committee, one of the four statutory committees that exist at the moment. How will the council consult midwives if the committee goes? The midwives are hugely important. Let us face it: they are the branch of nursing that brings the next generation into the world. There could not be a more important group. They really must be consulted by the NMC. I hope the Minister will tell us that there will still be a Midwifery Committee.

I welcome the provision for the NMC to make temporary changes to register nurses in emergency situations. Nurses are extremely well qualified and talented people, capable of all sorts of duties that at the moment they are not allowed to perform. I do not have many reservations about that; it is an excellent thing. Should a national emergency occur, there should be this immediate upgrading to do jobs that are needed in the community.

On the whole I welcome the revision of the NMC but hope I can have some assurances on the points I have raised.

My Lords, I apologise to both noble Baronesses for the precipitate way in which we started; they should regard it as a bit of cardiac exercise—it is good to run every day. If I answer their specific questions, I hope I will be able to help on all points.

How will the Appointments Commission appoint professional members? It will be appointing against standards which will be agreed with the body itself. On the issue raised by the noble Baroness, Lady Tonge, about elections and appointments, she will have heard me say in the recent Grand Committee on the Health and Social Care Bill that this is a regulatory body being established which is about safeguarding patients and standards. It is not a trade union or trade organisation. That is why they are appointed. The Appointments Commission would take great exception to the suggestion that they are a government body. They are not; they are the independent Appointments Commission and they will make these appointments.

Am I right in thinking, though, that the members of the Appointments Commission are appointed by the Government?

I am not absolutely certain about that and would need to write to the noble Baroness about it. I think there is an interim process. The Appointments Commission is an independent organisation. It was appointed to advise the Government and other bodies about making appointments.

The NMC will move to a fully appointed council to ensure that professional interests do not unduly influence council members. That is in response to recommendations from Dame Janet Smith. As I have said, the new council members will be appointed by the independent Appointments Commission against specific criteria relating to their skills and expertise. It is intended and expected that all the different elements that make up the current NMC will be represented on that body. That is absolutely clear.

On timing, the order will be made before the old council is abolished. We are discussing the proposed constitution with the NMC but it will not be two years; it will be much sooner than that—it may be April of next year or even sooner.

Prescribing rights will be held by fully registered nurses or midwives. At the moment only some of the registrants have full prescribing rights. This is not about a solution to an emergency but about enlarging that pool so that, were there an emergency, we would not have to deal with that issue at that point. That is probably quite a sensible precaution.

Will the Midwifery Committee be abolished? That is not part of this order. It would take another Order in Council to do that so the answer is no. It would take a separate process to do that.

My Lords, I would like to be clear on one point. It is always very boring to throw Explanatory Memorandums at Ministers because they probably have not had a chance to open them, but I think the Minister said that the nurses and midwives would be given powers to prescribe in advance of an emergency. That is not what the Explanatory Memorandum says. Paragraph 7.2 refers to the need,

“to make temporary annotations to its register during the sort of civil emergency where other civil contingency arrangements will be in place”.

It will be quite cumbersome, because it could not be done in advance. You would have to see a pandemic coming and then register nurses and midwives. What the Minister says makes sense. Such people would not be fully qualified because they are not registered. They are registrants—people coming on to the register. She might like to clarify that.

It may not be possible to answer this now, but I would be interested to know how the Appointments Commission will be advised about the professionals who are to be appointed. It will have to interview people because it will have to have a long list, a short list and other lists and it will have to interview people against criteria. Professionals will need to be involved and I wonder where they will come from.

My Lords, I am happy to write to the noble Baroness about that because I am not absolutely certain. I have seen how other appointments procedures take place, and they always draw on the expertise of the body concerned. I shall clarify that in a letter.

I am sorry if I was not clear about the annotations for people being able to order drugs and medicines in an emergency. The noble Baroness is completely correct. These measures are essentially reserved powers which have been legislated for to provide options in the event of emergencies. The provisions are drafted in such a way as to provide maximum flexibility. The NMC wishes to ensure that anyone whose register is annotated in this way can operate safely and effectively—so it refers to people who are on the register. It is currently developing a protocol for the use of those powers, which we will see in due course.

On Question, Motion agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.29 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.50 to 8.29 pm.]