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Nursing and Midwifery (Amendment) Order 2017

Volume 779: debated on Tuesday 28 February 2017

Motion to Approve

Moved by

That the draft Order laid before the House on 25 January be approved.

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

My Lords, I am grateful to the noble Lord, Lord Hunt, for his interest in this matter, and although naturally I am disappointed by his amendment to the Motion, I will use the opportunity afforded by it to aim to reassure him and all noble Lords that the proposed changes in this order are consistent with the Government’s commitment to strengthening the midwifery profession while also ensuring public protection. In addition, I am aware that the Secondary Legislation Scrutiny Committee has brought this order to the special attention of the House, and I will address the concerns of the committee in my remarks.

I know that the House will agree that it is vital for all women to be able to give birth in a safe, high-quality environment. This Government are committed to ensuring maternity services are the best and safest they can be. However, it is also true that things can and do go wrong, often with devastating impacts on mothers and babies but also on husbands, partners, parents, siblings and extended family members. Any good system of policy and regulation must promote best practice while also preparing to respond to mistakes when they happen.

In October 2016, Safer Maternity Care was published. It set out an action plan for the Government’s vision to make NHS maternity services some of the safest in the world and to achieve our national ambition to halve, by 2030, the rates of stillbirths, neonatal deaths and brain injuries that occur during or soon after birth and maternal deaths, with an interim aim of a reduction of 20% by 2020. Midwives are key to achieving this ambition. Because of this Government’s actions, there are more than 2,100 additional full-time equivalent midwives on our maternity units since 2010, and a further 6,300 are in training.

Midwives do a critically important job caring for mothers and babies and I pay tribute to the work that they do, which my family has been privileged to benefit from. However, when mistakes are made, it is right that they must be properly investigated. This order is before noble Lords partly in response to concerns raised during investigations into systematic failures in the care of mothers and babies at Morecambe Bay NHS Foundation Trust. As noble Lords know, following the completion of a number of investigations into complaints from families of those affected by the tragic events at Morecambe Bay, the Parliamentary and Health Service Ombudsman highlighted that,

“the midwifery supervision and regulatory arrangements at the local level failed to identify poor midwifery practice”.

A subsequent report by the King’s Fund described the system of local investigations as a “sub-FTP”—fitness-to-practise—“investigatory process”, which,

“causes confusion … and can result in a lack of clarity for providers over their responsibility”.

Similar concerns were raised in Dr Bill Kirkup’s Morecambe Bay investigation report, which referenced the,

“remarkable conflicts of interest inherent in a single individual combining the roles of risk manager, supervisor of midwives, senior midwife and staff-side representative”.

The report also stated that,

“the supervisory system as applied in Morecambe Bay … lacked objectivity and failed repeatedly to identify the evident problems in the unit or alert others to them”.

All three reports that I have just quoted from recommended that urgent change was needed to ensure a clear separation between regulation and supervision of midwives.

In large part to respond to the importance of improving safety and maternity services, this order makes a number of changes to the Nursing and Midwifery Council’s governing legislation as the independent regulator for nurses and midwives across the UK. Specifically, the order will: remove the statutory system of supervision and local investigation that is unique to midwifery; remove the statutory requirement for the NMC to have a midwifery committee; and make changes to improve the efficiency, effectiveness and proportionality of the NMC’s fitness-to-practise processes for both nurses and midwives.

My department publicly consulted on the measures set out in the order, receiving over 1,400 responses. Although the consultation highlighted concerns, in particular from within the midwifery profession, around the removal of both statutory supervision and the statutory requirement for a midwifery committee, this legislation is required to enhance patient safety, modernise the regulation of midwifery and improve fitness-to-practise processes for both nursing and midwifery. I will take each change in turn.

First, the principles of midwifery regulation are based on a model established in 1902, when midwives were working as independent practitioners. As part of the current statutory provisions, supervisors of midwives have a role in investigating and resolving fitness-to-practise concerns at a local level. This system of supervision and local investigation is unique to midwifery and there is a lack of evidence to suggest that the risks posed by contemporary midwifery practice require this additional tier of regulation. More significantly, given the findings of the reports I have referenced, I am confident that the separation of regulatory investigations from the supervision of midwives will be a positive step in enhancing public protection and will bring the regulation of midwifery into line with other regulatory practices.

To ensure that midwives continue to have access to support and development, the four UK countries, through their Chief Nursing Officers, have collaborated to develop new, non-statutory models of supervision that will deliver these elements. While taking account of the requirements in their own country, each of the four countries has been working within UK-agreed principles to develop employer-led models of supervision. These models will have no role in fitness-to-practise matters concerning midwives. The new models of midwifery supervision will be introduced following the removal of the current statutory requirements and will build on the systems and processes for good governance and professional performance already in place through employers.

The second change that the order makes is to remove the statutory requirement for the NMC to have a midwifery committee. The role of the midwifery committee is to advise the NMC’s council on matters affecting midwifery. This statutory requirement for a regulator to have a committee for a specific profession is unique to the NMC. The removal of this requirement does not prevent the NMC from establishing committees or groups in relation to midwifery, but simply removes the statutory requirement to do so—again aligning the regulation of midwives with that of other medical professions.

The NMC is working to ensure that appropriate, non-statutory routes are put in place so that the council continues to obtain expert advice on midwifery matters. To that end it has established a strategic midwifery panel to advise on key midwifery issues and develop strategic thinking on the future approach to midwifery regulation. This panel has four-country representation and includes the Royal College of Midwives. The NMC has also appointed a senior midwifery adviser to provide expert advice on midwifery issues. It is important to note that the NMC still has a statutory duty to consult persons likely to be affected by any proposed rules changes, and when establishing standards and guidance, including midwives and those with an interest in midwifery.

This Government value the important role of midwives and believe that they provide one of the most fundamental services in our health system—enabling babies to be brought into the world in a safe environment. I hope that noble Lords will be reassured that these changes will support the profession in ensuring the best outcomes for mothers and their babies.

The NMC sets standards of conduct, performance and behaviour for over 657,000 nurses and almost 35,000 midwives, and the third set of changes concerns the fitness-to-practise processes that the NMC follows when a registrant does not meet these standards. In 2015-16, the cost of these processes was over £58 million —around 76% of the NMC’s budget. The changes in this order will enable the NMC to take proportionate action to address less serious concerns more efficiently and effectively while maintaining public protection.

The department believes that the principles of better regulation centre on giving greater autonomy and flexibility to the regulatory bodies to enable them to more effectively deal with fitness-to-practise cases. The changes we are introducing include new powers for the investigating committee to agree undertakings with a registrant or issue a warning or advice to a registrant. They also include the replacement of the conduct and competence committee and the health committee with a single fitness-to-practise committee where both conduct and health issues can be considered. These changes will ensure that the NMC is able to respond to fitness-to-practise allegations in a more efficient and proportionate way, benefiting patients, registrants and employers.

The NMC is working with stakeholders to draft guidance for its investigating committee and case examiners in relation to the new powers. We would expect the NMC to exercise its powers in a fair, reasonable and proportionate manner, balancing the need for public protection and upholding standards and confidence in the profession with the interests of the nurse or midwife. The NMC has assured the department that it will keep the operation of its new powers under review. The NMC is also subject to accountability hearings with the health committee and to annual performance reviews by the Professional Standards Authority. The NMC will need to amend its fitness-to-practise rules before some of the changes come into effect. An Order in Council with these proposed amendments will be laid in Parliament for consideration.

The changes that this order makes to the NMC’s governing legislation will ensure that the regulation of nurses and midwives continues to be fit for purpose and will have patient safety at its heart. I beg to move.

Amendment to the Motion

Moved by

At end insert “but that this House regrets that the draft order abolishes the statutory midwifery committee; and calls on Her Majesty’s Government to ensure that robust arrangements are in place to ensure the continuation of supportive clinical supervision and leadership for midwives.”

My Lords, I thank the Minister for introducing the order.

It is fair to say that we debate midwifery regulation at a time of great challenge for the profession. I was looking recently at the fifth State of Maternity Services Report, produced by the Royal College of Midwives, which shows so clearly that we are in the eye of a perfect storm: the number of births is going up; there are fewer births to younger women and more to older women, which puts extra pressure on services; and we need more midwives.

We also need more midwives because of the age profile of the profession and the attrition rate of newly qualified midwives. One in three midwives are in their 50s and 60s. Even though, as the Minister has said, the number of training places is going up, the RCM estimates that the net annual increase at the moment is only about 100 midwives per annum. The RCM argues that, to deal with this, the NHS needs to do much more to retain existing staff and ensure that newly qualified midwives are employed quickly.

I very much share the Minister’s view that it is important we have an effective regulatory system alongside effective supervision of the profession, with clear and visible leadership at local, regional and national levels, but this is at the heart of my concerns about the order. The Minister explained very well the background to the order and the various reviews emanating from the serious incidents in Morecambe Bay. The NMC subsequently commissioned advice from the King’s Fund, which took as its basis that midwifery is regulated differently from other healthcare professions. The King’s Fund also undertook a review, to which information provided by the overseeing Professional Standards Authority cited,

“a lack of evidence to suggest that the risks posed by contemporary midwifery require an additional tier of regulation”—

that is, the supervisors—

“bringing into question the proportionality of the current system when compared to that operating for other professions”.

The PSA also stated that,

“the imposition of regulatory sanctions or prohibitions by one midwife on another without lay scrutiny is counter to principles of good regulation in the post-Shipman era”.

As the Minister has said, the core recommendation arising from that work of the King’s Fund was that,

“The NMC as the health care professional regulator should have direct responsibility and accountability solely for the core functions of regulation. The legislation pertaining to the NMC should be revised to reflect this. This means that the additional layer of regulation currently in place for midwives and the extended role for the NMC over statutory supervision should end”.

As we have heard, the NMC has accepted that core recommendation, which is reflected in the order before us.

I understand clearly the logic behind the recommendation and the order that we have tonight, but I think it is worth looking in detail at the King’s Fund report. It acknowledged that, if you removed the supervisory role and restricted the role of the NMC to purely that of a regulator—which I do not disagree with—you would leave a gap. As the King’s Fund said,

“While clearly valued and of benefit to midwives, the functions of support and development, leadership of the profession and strategic clinical leadership are not the role of the regulator. We believe that others in the health care system should take on responsibility for ensuring these functions continue”.

The report laid out a number of options and acknowledged that this was not guaranteed. It therefore recommended that the Department of Health,

“should consider how best to ensure access to ongoing supervision and support for midwives … Organisations providing maternity care should consider how they will continue to provide access for service users to discuss aspects of their care … NHS England … should assure themselves that they have adequate facility for accessing strategic input from the midwifery profession into the development of maternity services”.

Essentially, the point of my regret Motion is to ask the Minister to spell out exactly what progress is being made—

The noble Lord has raised an incredibly important point. Would he accept that the department, and indeed NHS England, together with the regulator, have moved very quickly to have the chief nursing officers from the four countries charged with the responsibilities, which quite rightly they should have, for actually putting in place adequate supervisory arrangements in order to support the midwives? Does he not feel that that is sufficient? If not, what else could be done?

I am very grateful to the noble Lord for his intervention. I fully accept the point he raises. The noble Lord knows a very great deal about nursing and midwifery, and has done some very valuable work in this area, but he mentioned the word “nursing”. He will know that there is an issue about how midwifery leadership is undertaken under the banner of nurses. That is really what I want to come to, but I think his point is very valid.

I am not suggesting that the Government—essentially, we are talking about four government departments—have not looked into this issue, but there are some issues about the visibility of professional leadership of the midwifery profession which I worry about. We know that midwives are subsumed under nursing leadership, and that has some consequences when it comes to priorities and resources. It is also worth saying to the noble Lord that, of course, often these directors can be described as directors of nursing and midwifery, but to get to a director level in the NHS, even at NHS trust level, midwives have to become directors of nursing and therefore they need a nursing qualification. My understanding is that only 30% of midwives are also nurses, so there is almost a glass ceiling for many members of the midwifery profession.

Why am I concerned about this? It is very simply that, given the huge pressures on midwifery at the moment, I worry that, when it comes to decisions being made nationally, either in the Department of Health or other health departments, or in NHS England or in the regional offices of NHS England, or locally on the boards of NHS trusts, with the best will in the world the midwifery voice is often not heard. As we see pressure coming on midwifery services, it is a worry that at board level, for example, there are few instances where the head of midwifery reports directly to the board, so the board does not always hear the concerns of the midwifery profession.

I enjoy this better than listening to great long tirades. Is the noble Lord not pointing to a system failure in our health service? Is he not falling into the trap of saying that, unless you have a protected silo, you cannot have an adequate voice? Surely, given his own thinking in Birmingham, which has been quite outstanding, and given what is happening in Manchester, we are looking at health economies where we are putting together groups of professionals working as teams, rather than perpetuating the idea that, unless we have a silo, we cannot move forward.

My Lords, I understand where the noble Lord is coming from. I would never want to propose a situation of a silo, but there are instances where it is necessary to give—I do not think that “protection” is exactly the word—some kind of underlining to the importance of a particular profession. The noble Baroness, Lady Cumberlege, is here, and it seems to me that the fact that she had to undertake a review recently is a visible sign of the problems that we have had in getting midwifery issues to the top of the table. I am not seeking to create a whole hierarchy of new directors at a cost of money and to silo it, but I think that we have some problems at the moment.

This issue was raised in the other place when the order was debated there. I actually think there is a case for there to be a chief midwifery officer at government level. In the other place, the Minister said that the Government consider that,

“the chief nursing officer is the professional lead for both nursing and midwifery and we intend that to continue. That role is supported by the head of maternity in NHS England, which will continue to be the case. … There will be a regional maternity lead and a deputy regional maternity lead in each of the four NHS England regions”.—[Official Report, Commons, Delegated Legislation Committee, 22/2/17; cols. 9-10.]

I must say that I do not like the term “maternity lead”, as it seems to understate and undermine the position. I know that you cannot say that everything is in the title, but “maternity lead” to me means a lower status—it is quite clear to me that you use “maternity lead” to indicate a lower status.

Let me be clear that the current head of midwifery in NHS England is a distinguished and highly respected midwife—there is no question about that—but I think that there is a problem. What does “head of midwifery” mean? Why do we not use the word “director”? There is an issue about authority and status. At the end of the day, as I understand it, the head of midwifery is the head of the profession in England, and I think that NHS England should recognise that in that person’s title and position.

It is very important that midwives as a whole look to the chief midwife for that essential professional leadership. It is clear from what the NMC has said, and from the order before us, that the NMC cannot provide that professional leadership. It is there to regulate, so we need strong professional leadership. I hope that the Minister will give this some further consideration. I am not seeking to create a whole new edifice; I am concerned about the voice of midwifery not being heard at the highest level.

That brings me to the proposed abolition of the midwifery committee. Again, I am the last person to believe that, if you have a committee, everything is well. Of course, I understand entirely why the NMC does not like the statutory midwifery committee. I completely get that; no chief executive of any body ever likes to have a statutory committee, particularly if the other bits of the area that it regulates do not have one. We all understand that, but you have to look at the fact that the NMC currently has 640,000 nurses on its register and 40,000 midwives. Inevitably, issues to do with nursing are bound to dominate the NMC consideration. So the benefit of having a statutory committee is again to give some kind of protection and recognition that midwifery needs to have some consideration within this very large regulatory body.

As a result of discussions, for which I am grateful, the NMC has given various assurances about the strategic midwifery panel and the number of advisers that will be appointed. Can the Minister ensure that Parliament is kept informed of the work of the NMC and, in particular, about how it will ensure that it is fully apprised of midwifery matters by the new arrangements? He said earlier that the NMC would keep these matters under review—and I think that he referred to the new disciplinary procedures—but I took that to mean these arrangements in general. “Under review” falls within governance and quango-land; it is not really a high status. Could he ensure that, at the very least, the NMC reports to Parliament on a regular basis on how it ensures that midwifery issues are fully heard by the council?

In conclusion, in moving this amendment I do not seek to criticise the NMC. I believe that the current chief executive inherited a mammoth challenge. I have been impressed by the progress that she has made, but the distinctive role of midwifery should be recognised, particularly at a time of extreme pressure on the profession. It is important that we do not dissipate its voice. I would welcome some reassurance from the Minister. I beg to move.

My Lords, midwives have a very special role in the local medical and nursing team. They should be seen as an integral part of that team; their role should not necessarily end at the point of birth. I know from many cases that the personal relationship built up between a mother and her designated midwife during the antenatal period can be enormously valuable at a time when she is very vulnerable. The mother often has the confidence to confide in the midwife if she has any health or personal security worries. I am talking here about domestic abuse, which so often occurs when a woman is pregnant. It is important that this relationship is nurtured and nothing gets in the way of a midwife adding all the value of which she or he is capable. I would hope that in future there would be more integration between the midwife, the health visitor and the district nurse. There is a lot of potential for that.

No debate about midwives and nurses is complete without talking about numbers. The noble Lord, Lord Hunt, mentioned rates of attrition. A couple of weeks ago, at Oral Questions, I asked the Minister how data are collected on the rate of attrition. It is not consistent. It makes it very difficult to know which areas of the country are good at keeping their midwives and nurses and which are not, so that we can see and spread best practice.

We have an enormous number of nurses from EU countries and, indeed, from other parts of the world. Brexit is looming and there is uncertainty—which we debated in this House yesterday and on other occasions—over the status of people from other EU countries working here. At the same time, we have a Government who are trying to reduce their immigration rates to a maximum of 100,000 a year, which could affect midwives coming from countries outside the EU. This is a big concern and we must not ignore it when we are talking about regulation.

I turn to the order before us and the amendment in the name of the noble Lord, Lord Hunt. We on these Benches are broadly supportive of the order, which will bring more flexibility into the regulation of nurses and midwives, in line with the way in which the GMC and other medical regulators are able to carry out their fitness-to-practise processes. It is right that the regulator should be able to deal more proportionately with cases where there is a finding of “no case to answer” and where the person concerned accepts that the practice in that case falls short of what should be expected. There is currently no power for examiners to consider alternative ways of resolving these cases. However, the Secondary Legislation Scrutiny Committee raised some questions about the new power to issue a warning. It accepted that this power is permissive but felt that, if examiners are to use the power to give a warning, and guidance is intended to direct users as to how terms should be interpreted, then the detail of the threshold for issuing a warning should either be in statutory guidance or in the order. What is the Government’s response to the committee’s suggestion?

Turning to the role of midwives in the governance of the NMC, it is important that the particular role of midwives is both recognised and catered for. However, if you are taking away the role of development support and supervision, and separating it from regulation, you do not necessarily need the existing structure of the midwifery committee. It is important and right that regulation and supervision are separated. I understand that there is to be a new midwifery panel which should be consulted and that supervision is to be replaced by new support and supervision structures in the four countries of the UK. There is also to be a new senior midwifery adviser. I take the point of the noble Lord, Lord Hunt, about status, which is important, particularly to the morale of the midwifery profession. Concerns have been raised that the new structures for support and supervision will not be ready in time for the changes at the end of March. I understand that, of the four nations, only Wales is ready to take over. What can the Minister tell us about the state of readiness of the other three nations?

I recognise that the new structures that the Government are proposing present a challenge to the midwifery profession. This is right, in response to the reviews discussed earlier. There are concerns that the new structures within the NMC cannot, for example, put midwifery matters on the council’s agenda. Can the Minister assure us that specific midwifery issues will be appropriately dealt with under the new structures?

The effectiveness of the proposed new structures will take a while to be demonstrated, so it is right that we seek these reassurances at the outset. In the end, patient safety must be at the forefront and that depends on the quality of development, training and supervision of the midwives. It is a challenge for the profession, and it is only right that we give midwives the opportunity to demonstrate that they can rise to that challenge. However, it is right that the powers and structures of the regulator are up to date and able to cope with the workload in an appropriate manner at a time when, as the noble Lord, Lord Hunt, said, the demand is rising.

My Lords, I declare an interest as a vice-president of the Royal College of Midwives.

I read the Second Reading debate that the noble Lord, Lord Hunt, introduced on the regulation of health and social care earlier this month. I was disappointed not to be able to listen to it in the Chamber because it had some eminent speakers. I read Hansard and, as so often, I was impressed by the clarity and first-hand knowledge that noble Lords brought to that debate. This time, the noble Lord, Lord Hunt, concentrated on beaming down on one aspect of regulation concerning one profession—midwifery.

In Parliament a couple of weeks ago, the general secretary of the Royal College of Midwives enlightened parliamentarians on the state of maternity services in 2016. Professor Cathy Warwick told us that, in the last six years, we have seen the number of midwives increase by 1,560, but that the increase has massively slowed down in recent years. As noble Lords have said in this debate, the work has been changing. First, we have seen an increase in the number of mothers giving birth. Secondly, we know that teenage pregnancies have declined—something we have sought to achieve in this country. However, older mothers over the age of 40 are giving birth and they have increased in number. Many of these women have long-standing health complications. They are sicker and sometimes they have babies who are more vulnerable and need greater care.

As the noble Lord, Lord Hunt, has said, the midwifery workforce is also changing, with an increase in the number of experienced midwives nearing retirement—one in three is now in her 50s or 60s. It is not so much about the numbers; this is a body of midwives who are really experienced. We need experienced midwives to ensure that new students coming in can understand the service in which they are working and the different skills they need. So we have to try to maintain the midwives that we already have and this order has a part to play. It is a new order and my noble friend the Minister gave a clear exposition of its value.

I want to probe some of its consequences a little. When we were carrying out the review of maternity services for England, the first thing we did was to ask the women, their partners and families what they wanted from maternity services. In this case, our constituency is the midwives. What do the midwives want? It was interesting that, when they were asked about statutory supervision going, they were very upset about it. Eighty-four per cent wanted to keep statutory supervision. They had keen concerns about patient safety and about the quality of assurance if supervision were removed from the law. They felt that the potential for the removal of support for midwives was considerable and they had concerns relating to the NMC’s ability to manage an increased fitness-to-practise referral rate.

These are genuine concerns and it is our duty to see that they are met as the roll-out of this new process takes place. I understand that the Secretary of State has commissioned another review of the NMC, again concerning Morecambe Bay. One case from there has still to be concluded after eight years. No wonder midwives are concerned about the NMC’s ability to manage an increased fitness-to-practise referral rate. The NMC has to step up to the plate. Look at how the GMC has evolved over years: the first thing its new chief executive did was ensure that it was an efficient organisation. I do not get that feeling of confidence with the NMC. Some work needs to be done on that, maybe on aspects brought up by the review.

In the five-year forward view, which was agreed between the DoH and NHS England, an ambition was laid out to make it easier for groups of midwives to set up their own NHS-funded midwifery services. We all agree that we need more midwives. Since the publication of Better Births, a small group of midwives called Neighbourhood Midwives has gathered together and managed to get a contract from the NHS. This gives us more midwives and women more choice, which is something we should applaud. However, it is important that midwives are subject to regulation, wherever they are working, and that has been the case since the European Union brought in its directive. There is a long-running saga about independent midwives and I declare my interest as a patron of Independent Midwives UK. The NMC has felt it right to ensure that independent midwives are suitably covered for clinical indemnity when delivering women giving birth, and it is right to do so. However, I cannot glean from the NMC what level of indemnity is required. I have asked five times what is the “appropriate”—the NMC’s word—cover that it requires for clinical indemnity for independent midwives. I get no answer. I do not know whether the NMC realises how difficult it is to get clinical indemnity to cover people working in different professions. Although a lot of the cases that are brought are actually systems failures, sometimes they are obstetric failures. It is right that the regulators should look at the safety record of those they are indemnifying and I am not sure that is understood by the NMC.

The first questions that any insurance company is going to ask are: “What is meant by appropriate? What size of pot is required?”. Again, we get no answers. The NMC has spent a very long time warning independent midwives that they could lose their registration. Four days before Christmas, the NMC sent a letter out telling independent midwives that they had lost their right to practise. Four days before Christmas, these trained midwives, who had spent a long time in the service, were in fear of losing their livelihoods, vocation and profession. Above all, they lost their right to attend in labour women whom they knew well. As the noble Baroness, Lady Walmsley, has said, that is so important. We know that if there is continuity in the person looking after the woman through antenatal, the birth and postnatal care, we reduce the number of premature births by 24%. Premature births are expensive, emotionally and in monetary terms. If we can reduce them by that percentage we should strive very hard to achieve it.

Since these independent midwives have sought clarity from the NMC, the NMC owes it to them, but they have received conflicting advice. In its values, the NMC states that it wants to be “fair”. My noble friend raised the question of fairness. The NMC says that it will be,

“consistent in the way we deal with people”.

I cannot see that consistency. All the midwives and women who have rung me up and sent me emails have said that they do not understand the consistency because it is not there. It seems to apply one way to one midwife and another way to another, depending on the relationships—sometimes family ones—with the women. I welcome the review of the NMC, not least to examine the level and content of communication provided to those registrants who are seeking clarity, so that they know where they stand. That is the least that a registration body should do.

Better Births, the report of the maternity review for England, has two central themes: choice and safety. As my noble friend said in his introduction to this debate, safety should be at the heart of the service. We agree with that and safety is attached to the order. In our travels during the review, we listened to countless women—lots of them—trying to find out exactly what they wanted from the service. One strong response was that women and their families are seeking a safer service. I will tell noble Lords, and particularly the Minister, about our visit to Sweden because we are waiting for a consultation paper and I hope my noble friend will put pressure on the Secretary of State and his colleagues to release it. Over the last five or so years, Sweden has reduced the number of serious birth injuries from 20 per 100,000 babies born to five. In England, our current rate is 30 per 100,000. Last year, the NHS Litigation Authority paid out £560 million to 130 families for children who had been damaged at birth, while another 70 families who were not able to establish clinical negligence in this country received no compensation at all.

In England, it takes up to 10 years to settle such cases, and the costs are likely to rise to £1 billion by 2020. In Sweden, the test is whether the damage was avoidable. It does not seek to establish blame; that is really important. The family is fully involved and the aim is to carry out a rapid investigation to determine what happened and to feed the learning back to the clinical teams, while providing rapid support for families. Our system means the learning is delayed. The people involved in the incidents have moved on after this period of time, so none of the learning is fed back.

We need a system like the one in Sweden. That is what we have proposed in Better Births through what we call a rapid resolution and redress system. The Government have agreed to consult on this scheme and we hope the consultation will be launched as soon as possible, because we have momentum going now. This is a once-in-a-generation opportunity to do a really good thing for families, for babies, for the country and for the Exchequer. Anything my noble friend can do to ensure its publication would be very welcome indeed.

One has only to read the superb series on midwifery in the Lancet to see the scope of practice for midwives and how it differs immensely from nursing. This addresses some of the points the noble Lord, Lord Hunt, made. The Royal College of Midwives makes the case clearly in its paper when it says:

“We would not treat doctors and dentists as if they were interchangeable”.

Nursing and midwifery should be treated like that—they are different. I understand what the noble Lord, Lord Willis, was saying about silos. We have to avoid them. Travelling around the country one sees silos, but one also sees magical things happening where there are no silos—where obstetricians, midwives, nurses, neonatal nurses and all the rest are working together. Within Better Births, we are introducing local maternity systems to try to make that happen.

Our concern is heightened by the fact that, as the noble Lord, Lord Hunt, was saying, there are no seats on the council set aside for midwives. Inevitably, the council is dominated by nurses. Therefore, with the best will in the world, the council can at times make decisions about midwifery with no midwife in the room. I do not think that is right. We are told about a panel, but a panel is not strong. We want something that has presence, that is respected and that can make a mark within the regulatory body, the NMC.

I will give my noble friend four questions—I should have given him notice of this, but I have been very busy on another Bill today—and I will perhaps seek a written answer to them. Could he give an assurance that, regardless of any removal of the legal requirement for a midwifery committee, the Government will continue to require the NMC to pay due regard to the midwifery profession, recognising that it regulates two separate, distinct professions? The NMC will be required to put in place robust systems to ensure that it seeks and obtains professional midwifery advice on all matters affecting midwifery. Will he agree to what I think is a very modest request?

Could my noble friend also confirm that the NMC will continue to be required to produce standards and guidance for midwives? This should include standards pertaining to the care of mothers and babies and be based upon extensive consultation with the midwifery profession. Another value the NMC has is accountability. As the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, said, we need the NMC to be accountable. Her comment about knowing where the good places are that retain midwives is very important. My view is that it depends on the leadership and accountability of those looking after the service.

Thirdly, I ask my noble friend, regarding local supervision of midwives, to confirm that a robust system will be in place to monitor the rollout of the new system and, specifically, that the Department of Health will be required to report to Parliament—as has already been suggested in the debate—on the effectiveness of the new arrangements after their first year of operation.

Finally, I ask my noble friend to agree that there is a need for a senior midwifery voice within the UK Government. As has been said, we have a superb leader in NHS England on midwifery care, but that person needs a higher status. That person should be on the same level as the Chief Nursing Officer, because they are looking at different aspects. Can my noble friend consider having a chief midwifery officer at the national level, with directors of midwifery within the NHS England regional teams? We need that leadership. Over the years it has been much diminished, as the noble Lord, Lord Hunt, explained very well. We very much admire the lead maternity person in NHS England but they need to be called a “director”. She or he needs a higher status, and I do not think that such a request is impossible to respond to.

My Lords, at the beginning of this debate I decided not to say anything. I have been stung into action but I will be incredibly brief. First, I thank the noble Lord, Lord Hunt, for tabling his amendment to the Motion. Although I am very supportive of the order, he has again demonstrated the need to debate these orders and to get the views of Members of your Lordships’ House who have vast experience in these areas. The noble Baroness, Lady Cumberlege, has again demonstrated the breadth of her experience and has brought it to bear.

I should declare my interests as a consultant to the NMC and as a fellow of the Royal College of Nursing—an honorary one because I have never been a nurse and have never been on the register. People would not trust me in that way. I should also put on the record that I am huge admirer of the midwifery profession. My daughter has recently had two caesarean sections in different parts of the country. One location, which I shall not name, was incredibly disappointing and demonstrated some of the real issues that have to be addressed. That is where my passion for a more integrated service has come from.

The other birth took place last year in York, which has an integrated and mother-led maternity service—exactly what my noble friend Lady Walmsley and the noble Baroness referred to. There, the mother is not a recipient on behalf of others but leads the whole process—everything from pain management to enhanced recovery. All of this demonstrates what is in the noble Baroness’s report. Things should be looked at from the mother’s point of view and built up from there.

Again, I would not wish my silo comments to be misunderstood but I am desperately anxious that the role of the midwife should in many ways go back to its origins. This legislation goes back over a century, but in those days the midwife was not simply someone who ensured a safe birth; she was instrumental in dealing with the family within the community. I feel that we miss a trick when we do not use the phenomenal expertise within the midwifery profession to become leaders in carrying forward the Government’s drive—rightly, in my view—towards a community, population-based health economy. Midwives could fulfil that role.

There are two issues relating to the order, and I want to stick to those rather than deal with some of the other issues that have been raised. The first is fitness to practise, the importance of which has been somewhat overlooked compared with the removal of the committee. Fitness to practise is a huge issue both for midwives and for the nursing profession. Some £48 million a year of nurses’ and midwives’ own money is spent on this process. People often wait five years for a resolution. Their career is wrecked, they cannot go back to practise and we lose them. All that needs to be addressed. I applaud the Government for listening to the concerns of the Nursing and Midwifery Council and for bringing in a fitness-to-practise process. That will at least speed matters up and get an early resolution.

Quite rightly, questions have been raised about the way in which affirmative resolutions come about, whether they should be in the order or in guidance, and whether the guidance should be statutory. These are things for the Minister to work out with his colleagues, and I applaud those questions. It is very important that we have a system which is speedy, fair and appropriate.

The second issue with the order is the separation of the role of regulation from professional interest. I cannot believe that anyone believes that that is not the right thing to do. With independent regulators of healthcare systems—whether they relate to dentists, doctors, nurses or midwives—the professional interest should be separated from the regulatory interest. That is what this order tries to do. Rightly, the noble Baroness, Lady Cumberlege, and the noble Lord, Lord Hunt, asked whether, by separating them, you lose something or gain something. I believe that we gain something enormous by having a regulator who can concentrate and where everybody knows where the regulatory burden lies and there is a clear responsibility to deal with it. The reports on Morecambe Bay show that that was all fudged, with one blaming the other. I think that we must try to move away from that.

The whole issue of supervision worries me as much as it does other Members of the House. We cannot simply say that, by putting it with the four lead nurses, who are responsible for nursing and midwifery, the problem is solved. We know full well that that is not the case. For instance, they do not have a resource to be able to deliver that service across the four countries. I hope that the Minister, when he replies, will say what plans the Government have to actually enforce and indeed to support the four CNOs, or Chief Nursing Officers—and midwifery officers, we should call them—rather than simply leave them to get on with it.

This order is going in the right direction. Sadly, it misses out one thing—I thought the Minister might mention it in his opening statement—which is that the department has said on a number of occasions that this order has nothing to do with the scope of midwifery practice. The noble Baroness, Lady Cumberlege, quite rightly said that we have to have someone who sets the standards for midwifery in the future, and it has to be the NMC. I totally agree with her. But, quite frankly, simply creating more of the same is not the answer as we move forward. You cannot have the models that she described in her excellent report without having far greater flexibility within the system than we have now.

When the NMC looks at the scope of midwifery practice in setting new standards—as I am sure it will—I hope that it will look at how we can put midwifery rightfully in place right at the heart of our care system and make sure that the sort of standards that we have lived by for the past century are enhanced and that we can be proud of them as we move forward. I applaud the Minister for bringing this forward and I am wholly supportive of it, although my colleague has a few reservations.

I thank noble Lords for an extremely high-quality and very well-informed debate on both this order and the amendment. I will do my best to deal with the many questions and important issues that were raised by noble Lords.

First, I welcome the welcome that this order has broadly received. As the noble Lord, Lord Willis, pointed out, the separation of the professional interest and regulatory functions is best practice; that is how we expect regulation to take place these days. Unfortunately, in Morecambe Bay that lack of separation was one of the contributing factors, and that obviously has been a spur to change. I also welcome the words of support for the fitness-to-practise changes, which I think will bring in a quicker, more flexible and more proportionate system.

I turn to some of the points made by the noble Lord, Lord Hunt. There is undoubtedly an issue about the workforce, as he pointed out. There has been an increase in the number of births, and more is being done both to recruit existing staff and to retain them. But at the heart of this are three issues. The first is the point about silos versus integrated care. Of course we all want integrated care; that is the direction of travel. At the same time, necessary changes are taking place to the regulatory structure to deliver the kind of separation and clarity that we also want to happen. The concern being raised is whether, in doing so, we will in some way change the status of the profession, if you like—not intentionally, but by virtue of the removal of various statutory arrangements and so on. I can understand why some might draw that conclusion, but it is clearly not the intention of what is happening here, and I hope to set out a few reasons why that is the case.

The proposed changes do not alter the status of midwifery as a distinct profession with its own standards. There will be no change to the protected title of midwife, and delivering a baby remains a protected function for a midwife or medical practitioner; it is incredibly important to set that out at the beginning. As the noble Lord, Lord Hunt, pointed out, there are various tiers of representation, if you like, below Chief Nursing Officer: head of maternity, NHS England regional heads, deputy heads and so on. I do not know the specific reason why that is called maternity, not midwifery. I imagine that it might be because of integrated care and because, although it might have midwifery as the major focus of it, it might also involve other aspects of the birthing arrangements. I shall certainly endeavour to find out and write to the noble Lord about it.

The other issues were around whether the profession is getting the attention and respect that it deserves and indeed is properly represented at the right levels and in the right bodies. There is a midwife on the NMC. That is not a statutory requirement but the council ensures that it happens. It is also fair to say that we have a Secretary of State who is taking the issue of maternity safety incredibly seriously. I mentioned the national ambition, but we also had the publication of Safer Maternity Care in October and I will come on to some of the issues raised by my noble friend Lady Cumberlege as well. A lot is going on to support the profession.

One important part of that is making sure that this new supervisory function takes place properly and replaces statutory supervision. I quite understand why noble Lords will be concerned that that should take place. While on the one hand we have all agreed that the separation of regulation and supervision needs to happen and that the order creates greater clarity, there must be something to replace the supervisory arrangements that we agree need to change.

I reassure noble Lords that the four countries in the UK have been working together since 2015 to take account of the new employer-led models of supervision. In England, the NHS has evaluated the model in seven pilot sites to inform the model and its implementation, and there has been an education programme. Those pilots began last November and will complete in March, so they are informing the arrangements that go on in England. In the other countries, systemic reviews of the new system are taking place, on slightly different timeframes in different countries. But I reassure noble Lords that that will be happening. Not only is there preparation for the new system, there will be reviews into its effectiveness. Given all the points noble Lords have made about our experiences in Morecambe Bay and elsewhere, it is clearly essential that that happens.

A reasonable question was asked by the noble Baroness, Lady Walmsley, and my noble friend Lady Cumberlege about whether midwifery issues would be properly dealt with by the NMC and whether it has the capacity to do so, given its past problems. It received a much more positive performance review from the Professional Standards Authority, which found improvements down the line. Clearly, there is still one outstanding issue resulting from Morecambe Bay, but it is now an improved regulator and we can have confidence that it will do the kind of job that we now ask it to do.

My noble friend Lady Cumberlege raised the issue of the right level of insurance for independent midwives. I know that is incredibly important for maternal choice. Insurance is clearly a hot topic at the moment, but I will certainly write to her and find out exactly what the regulator is doing to give proper guidance, because that must happen. She is quite right to raise the example of Sweden. We know that there is a lot more to be done to improve maternity services in this country. Change is going on. My noble friend also mentioned the consultation going on with regard to regulatory redress. There needs to be a change of culture so that it is less adversarial and less litigious, and designed to increase learning and bring that to bear much more quickly on the process. We are undertaking that set of reforms and I pay huge tribute to her for her work in making that happen. My noble friend asked a set of other questions and I will certainly write to her so that I can answer her properly if I have not done so in the answers I have given already.

I end by paying tribute to the profession itself. The noble Lord, Lord Willis, made an excellent point, which goes beyond the scope of the order but is important. There is more that midwives can—indeed, must—do if we are to have a properly integrated system. We all want a healthcare system that, in the end, involves a personalised pathway. Whatever your experience, whether you are an older person, a young person, a mother or whatever, you can have someone by your side, leading you through that experience. Clearly, many pregnant women will want that to be a midwife, so I absolutely take the point about integrating with health visitors and many others besides. I hope changes are going on. That is perhaps not a subject for debate tonight but for another time. On that basis, I ask the noble Lord, Lord Hunt, to withdraw his amendment.

My Lords, I am very grateful to the Minister. I totally agree with the noble Baroness, Lady Walmsley, about the importance of the midwife being an integral part of the team. The noble Lord, Lord Willis, is right, as is the Minister, that one of the lessons of Morecambe Bay is the problem of different professions being completely unable to relate and talk to each other. Frankly, this is an issue that the health service suffers from and the Minister is right that, in a sense, it could be argued that the NMC is putting forward a more integrated approach to regulation. The risk is that, because of the disparity between the number of nurses and midwives—and we have often seen this before—integration could mean the marginalisation of certain people. This is the risk that we need to guard against—the unintended consequence.

The Minister has given a very good assurance that this matter will be kept under clear review; he emphasised that this would be a proper review and I very much welcome that. However, I still believe that, in the end, the answer to the question that he posed—“Are midwives around the right table?”—is that the experience of the health service is that they are never around the table at all. This is the problem. Whether the meetings are at board level of an English NHS trust, at the top level of the senior management team of a regional office of NHS Executive, at the NHS Executive itself, or at the department, they are never there. The big problem of how we get midwifery input at those top levels is one that we are still struggling with.

It is ironic that, having debated only two weeks ago the need for an approach to health regulation that covers all professions, we are now debating one profession. The noble Baroness, Lady Cumberlege, is absolutely right about this. I am indebted to the barrister Kenneth Hamer from Henderson Chambers who wrote to me after our last debate to point out that the Supreme Court is now using the Law Commission’s work on regulation to inform its own judgments. If there is any argument for the Government to produce a Bill in relation to unified health regulation very quickly, that is it.

On the loss of the midwifery supervisor, everyone agrees that the regulatory function needs to be separated off, and it is absolutely right that that is what the NMC should be concerned with. But there is concern about the loss of the supervisor at the local level. For me, the issue is safety. We know that NHS trusts are coming under huge pressure in relation to staffing levels from NHS Improvement because of pressure to reduce the deficit. The question, which I pose rhetorically, is who, given this pressure and given that midwifery does not have a voice at the board table, is going to defend the safety of the profession in terms of numbers when it comes to kind of hard decisions that are going to be made? That is my concern and frankly it has not been answered.

On the NMC’s performance, I remain of the view that the current chief executive has done a very good job trying to deal with the huge problems that she inherited. I hope that, whatever review is undertaken, it will not destabilise the NMC and that she will be given the time she needs to continue to make improvements.

The Minister said that he would exchange letters on the issue of independent midwives. I hope he will agree to go a little bit further and discuss this matter with his noble friend and the NMC. This issue has now been around for years, but it could clearly be sorted. A number of people are involved—the department, NHS England, the NMC and, I suspect, the NHS Litigation Authority—but if Ministers banged their heads together this would be sorted; that needs to happen. Frankly, even post the calamity of the 2012 Act, which has created such a discordant structure, Ministers can, in the end, determine something to happen here. That is what we need.

There is no question about it: I am not interested in silo professional behaviour or in whether a statutory committee is the right way to go forward. But I am convinced that the voice of midwifery needs to be heard at the highest level. I hope that this excellent debate—I am grateful to the Minister, too, for his response—has been helpful in just making that point. I shall not press my amendment to the Motion.

Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 8.30 pm.