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National Health Service (Performers Lists) (England) (Amendment) Regulations 2023

Volume 831: debated on Thursday 13 July 2023

Motion to Regret

Moved by

That this House regrets the lack of an impact assessment and a full consultation exercise being undertaken in relation to the changes made through the National Health Service (Performers Lists) (England) (Amendment) Regulations 2023 to the National Health Service (Performers Lists) (England) Regulations 2013, given the wide-ranging effect of those regulations on NHS primary care dentistry in England.

My Lords, it is a great pleasure once again to draw your Lordships’ attention to dentistry matters in relation to this statutory instrument. I declare an interest as president of the British Fluoridation Society and related bodies.

These regulations are important in themselves—more important than first meets the eye. They come within the context of wider issues around the problems that patients are having getting access to dentistry under the NHS. In our previous debate, a few weeks ago, I referred to the GP patient survey last year, in which 12.9% of those surveyed said that they had failed to get an NHS dental appointment in the last two years. If you count only those people who attempted to get an NHS appointment the first time, 24% failed to get an appointment in the last two years.

In the last few weeks, I have had urgent representation from the Shildon and Dene Valley branch of the Labour Party about the impact that the closure of BUPA Dental Care in Shildon and Bishop Auckland has had on providing NHS dental services. As the branch says, this is an area where only a minority of people can afford expensive private dental care. The closures will lead to an overall decline in dental health and to increases in related health problems. This is happening up and down the country.

When we debated this in June, the Minister referred to the July 2022 package of dental system improvements, which was aimed partly at improving patient information and at changes to the contract to provide some incentives. However, that is not sufficient to tackle the chronic access problems that patients have.

The announcement in the NHS workforce plan that the Government intend to

“Expand dentistry training places by 40%”

is, of course, very welcome indeed. However, the Minister will need to find some capital funds to help dentist schools expand, and I know the Minister will not be surprised if I mention that the

“tie-in period to encourage dentists to spend a minimum proportion of their time delivering NHS care”

has caused some eyebrows to be raised—although I actually sympathise with that proposition.

However, it is a pity that the Secretary of State asserted that

“two thirds of dentists do not go on to do NHS work”.—[Official Report, Commons, 3/7/23; col. 580.]

I have now seen acknowledgment by officials in the Minister’s department that a mistake was made. Two figures have mistakenly been reversed: around two thirds of dentists perform NHS work. I think an apology is owed to the profession for this.

I come to the regulations. The national performers list is a list of approved GPs, opticians and dentists who satisfy a range of criteria necessary for working in NHS primary care in England. Accessible online, the national performers list allows members of the public to check the status of those performers. The amendments to the National Health Service (Performers Lists) (England) Regulations 2013 include three main changes: first, adjustments to simplify intra-UK cross-border working of medical, dental and ophthalmic practitioners; secondly, amendments to simplify the application process for overseas dentists who have not completed dental foundation training; and, thirdly, postgraduate dental deans will no longer have responsibility to sign off dentists who have gone through a supported period of training called the performers list validation by experience, or PLVE.

Let me say at once that actions to remove bureaucratic barriers and ease workforce pressures by improving the process for overseas qualified dentists to join the NHS workforce are of course welcome, and there is no doubt that the current process is bureaucratic and inflexible. But there are a number of real concerns. First is the lack of consultation. I have talked to the British Dental Association, which was not consulted before the changes were made and had expected a formal consultation to take place before implementation of any changes. The reason given by the noble Lord’s department is the

“strong public interest in introducing this legislation swiftly”

to reduce unnecessary barriers and to ease workforce pressures. I do not dispute that parts of the process need improving, nor do I argue against the view that this should be done as quickly as possible, but I think that the BDA and others in the profession are entitled to be consulted on it.

Then there is the absence of an impact assessment. The Explanatory Memorandum states:

“A full Impact Assessment has not been prepared for this instrument … no, or no significant, impact on”

the private, voluntary or public sector is foreseen. That is arguable. I suggest that the impact on the dental sector could be significant: first, with the loss of a safety net for practitioners and patients; and then with a significant increase in workload for a diminishing group of NHS England dental advisers. The latter point carries the risk that either a backlog of applicants will develop while waiting for assessment or assessments will be watered down to ensure a fast journey through the process, which of course has implications for patient safety.

On patient safety, we know that many working within dental postgraduate education are concerned about the approach adopted and are uncertain about whether the structure now in place is sufficiently robust to offer the public protections required to ensure all dentists will be fit to join the performers list. There is a wider impact, too. There is now an exemption from the need to complete foundation training

“where a dental practitioner is judged, through an assessment by the Board … to have knowledge and experience equivalent to that of a dental practitioner who has satisfactorily completed foundation training”.

This is intended to address the issue of intra-UK cross-border transfers and the process for overseas applicants, but it would be fair to reflect the BDA’s concern as to whether, say, a new graduate from a UK or English dental school would also be able to argue that they could be assessed via this equivalence route rather than going through foundation training.

Since the BDA first expressed concern about the lack of consultation on the changes mentioned, a consultation with additional changes to the performers list regulations was received on 19 June, with a deadline of 3 July. That is two weeks. That is not fair to the BDA or other dental organisations.

Obviously, overall, I can see the argument for these regulations, but it is really unfair and discourteous to the profession that some kind of proper consultation was not gone through. There are also a number of issues where an impact assessment would have been absolutely appropriate. Having said that, I hope we can have a short but informed debate. I beg to move.

My Lords, we welcome the debate as an opportunity to look at some of the challenges around the number of GPs, dentists, optometrists and other primary care workers that we have available to us. I welcome the fact that the noble Lord, Lord Hunt, has given us that opportunity.

At the core of the statutory instrument, it seems sensible that we should accept registration from other parts of the United Kingdom where people are on the performers list in another part of the devolved system. To many of us, it is perhaps a surprise that it is not already the case that people on a list in one part of the UK are not automatically passported through to other parts. I am interested to hear from the Minister whether he has any information on how much of an issue this has been and whether there is quantitative or qualitative data around whether we have had significant numbers of practitioners in these fields finding that they had a problem as they moved from London to Edinburgh, Cardiff or Belfast and found that there was a barrier to them restarting their work as a professional because of this performers list issue. Any information he has on that would be helpful.

It would also be very interesting to know whether discussions are ongoing about reciprocal arrangements—whether the constituent parts of the United Kingdom will now plan to do something similar when a doctor on the performers list in England enters their system and whether there will be a similar arrangement for automatic entry to the performers list, subject to later checks, rather than having to apply from scratch.

My second point is to reflect on the user experience of trying to navigate the system, either as a practitioner who wants to work and is thinking about how to get on the performers list or as a member of the public. As the noble Lord, Lord Hunt, pointed out, part of the value—or intended value—of the performers list is that a member of the public can see if somebody who they are going to for treatment has been authorised effectively to offer treatment in their area. We want this to be very simple for everybody concerned, but it is quite confusing at the moment.

As part of my research for this debate, I went to a popular search engine and typed in “NHS performers list”. What I got back was a web page from The website had .uk at the end, so I assumed it was for the UK; the page was called “National Performers List”, and I assumed “national” meant it was for the United Kingdom. I clicked on that and then, on the next page, it told me that it is only for England. Nowhere in this does it explain to me that there are other performers lists for other parts of the United Kingdom. Nowhere am I given a link to say, “If you are interested in Scotland, go here”. The whole experience is a real confusion between the United Kingdom and England—I speak as a supporter of the devolved settlement, but if we are going to do it, let us do it properly. It seems to me that there is no excuse for not making it clear, given that the .uk bit of the service is not for the UK, that this relates to England and, if you do not want that, here is how to get to the other parts of the United Kingdom.

I note in passing that, if you have a problem with this system, the email address is for the Exeter helpdesk. As I think I have referred to before, I spent many happy years working on the Exeter system—the system for registering GPs—and I am pleased to see it still lives on in the helpdesk for people trying to find out about the performers list.

Equally, if you then come back and search for “performers list” for Wales, Scotland and Northern Ireland, you get a real mishmash of results. There is no consistency. Each of the constituent parts of the United Kingdom has some kind of thing that explains the performers list to you; none of them will link to the others or give you consistent information. In fact, the only place you can find it, if you are really lucky, is by stumbling across the website of the National Association of Sessional GPs, which I assume is intended for GPs looking for locum work. It has a really good explainer with links to all of them, but it seems to me that the Government should be at least as good as the National Association of Sessional GPs at signposting people to the right bit of the performers list.

The other significant area of the statutory instrument which is worth looking at is the question of the inclusion of overseas dentists, which I know the Minister is very familiar with and spends time on. Again, the Explanatory Memorandum tells us that this will improve the situation but is not very forthcoming on how. It tells us that one form of EU exemption will be removed and another system put in place. It would be helpful if the Minister could flesh out a bit about why he is confident—I assume—that it will be a genuine improvement. It would be interesting to hear a bit more detail about how he thinks it will be an improvement and how the new assessment process will help.

I have a final couple of questions. One foundational question, which comes back to the point about the impact assessment, is whether anybody has looked at how much value this performers list system actually adds over and above the existing professional registration systems. I do not think we should just take things as read. We have done it like this previously, where we have people registering with a professional body which requires passing all kinds of tests to get on to the register as a practising dentist or doctor within the United Kingdom—then we have this performers list system. I am genuinely interested in whether we have ever thought to ask whether it is useful to have the performers list layer on top of the general registration layer; if so, how useful it is; and whether the cost of having these two layers of registration is justified. It seems to me that we should always ask those questions; otherwise, we will have bureaucracy on top of bureaucracy.

Finally, I cannot miss this opportunity: I noticed today that in the Prime Minister’s announcement about the funding settlement, which is a welcome increase for various public sector professionals, he said that the Government are going to fund it in part by raising visa fee rates. That is critical. Here we are debating a measure which will make registration on the performers list as an overseas professional a little easier—and we all know that we need a continued stream of overseas professionals in this area. However good we are at training people, we are not going to get there for a while. I am interested in and hopeful about the Minister’s views on whether we are not giving with one hand and taking back with the other. We are making registration a bit easier, but we are going to make it a lot more expensive for people to get here in the first place. As I say, I cannot miss the opportunity to flag that there may be some inconsistency in government policy across that piece.

My Lords, I think this debate is all about whether these regulations will do the job they are intended to do. As my noble friend Lord Hunt said at the outset, it is difficult to see whether that is the case in the absence of, for example, an impact assessment. I start by thanking my noble friend for again bringing this issue before the House. NHS dentistry is so important to people’s health and well-being in this country, and it has deteriorated, sadly, over a number of years. This is not an issue with the regulations themselves but whether they assist primary care in the way that it is said they are going to and that we all seek to do.

In terms of the background, there is no doubt—we all know this from our own experience and that of the people we know—that finding an NHS dental practice in the UK which will accept new adult patients for treatment under the health service is something of a rarity. Only one in 10 practices is offering that at present. That situation remains unsustainable.

I would be interested to know what assessment the Minister has made of the package of dental system improvements that were introduced from July 2022. As my noble friend Lord Hunt said, despite the intention, the provisions within them have never been sufficient to tackle the chronic access problems that patients face, as I have just described.

It is good that there is an expansion of dentistry training places in the NHS workforce plan, for which we have called for some time, but the workforce plan also proposes

“a tie-in period to encourage dentists to spend a minimum proportion of their time delivering NHS care”.

How does that square with the comment from the British Dental Association, which said last month that

“over half of dentists responding to our surveys say they have cut their NHS commitment since lockdown—and many more state their intention to reduce—or further reduce—their NHS work”?

It would be helpful to your Lordships’ House if the Minister could explain how the tie-in period in the workforce plan squares with the reality.

As we have heard, the regulations amend the 2013 regulations by introducing two main changes. First, they make the necessary legislative amendments to simplify intra-UK cross-border working of medical, dental and ophthalmic practitioners. This will apply to the relevant performers lists. It would be helpful to hear from the Minister, for each of those categories, how many more practitioners we can expect to see as a result of this simplification.

Secondly, the amending regulations simplify the application process for overseas dentists who have not completed dental foundation training. As we know, this applies only to dental practitioners. The regulations revoke the exemptions from the requirement to undertake dental foundation training in Regulation 34(4) of the 2013 regulations and provide two exemptions in their place. The first exemption is where a dental practitioner is judged through an assessment by the board to have knowledge and experience equivalent to that of a dental practitioner who has satisfactorily completed foundation training. The second exemption is where a dental practitioner is participating in an induction programme determined by the board. In the assessment by the board, how will knowledge and experience be balanced against each other? Will a lack of one be countered by more of the other, or are these defined minimum levels?

The regulations also make minor amendments to the 2013 regulations to make it clear that dental practitioners are required to satisfactorily complete foundation training to be included on the dental performers list rather than just completing foundation training. That rather begs the question: does that mean that practitioners were previously completing foundation training unsatisfactorily yet were included on the dental performers list? Perhaps the Minister could enlighten us on that point.

As we have heard, the regulations are said to be a central part of the Government’s dental plan, which is intended, they say, to provide urgent action to improve access to NHS dental services and to meet what are acknowledged to be the unprecedented levels of demand we currently see. Can we have some indication about what impact the Government expect these changes to have on access and on meeting levels of demand? My noble friend Lord Hunt rightly highlighted that the absence of an impact assessment makes it impossible for your Lordships’ House—or anybody else, indeed—to make that judgment. Without an impact assessment, how on earth does one assess the impact? That is the question for the Minister: in its absence, how will he and his department assess the impact of these regulations?

Lastly, I want to pick up the other point in the Motion on the lack of consultation. We know that no formal consultation was carried out and we have heard the department’s reasons: it believes that there is strong public interest in introducing this legislation swiftly. We are all in favour of swift action, for sure, but having no formal consultation surely sets a very bad precedent. Does the Minister agree? After all, there is so much urgency in our healthcare system and we are also requiring urgent action. Are we to expect that this will continue to be a way of dealing with things?

Could the Government have dealt with this in a different way, by acting more quickly and then carrying out a consultation to see whether any changes were required? Given that there is no statutory review clause, how will the impact of the changes be reviewed? As my noble friend Lord Hunt said, while we agree that there were significant delays and barriers within the PLVE system, they had existed over many years, and this does not justify enacting them without consultation. Can the Minister explain how it is justifiable that consultation did not take place with the British Dental Association and other relevant organisations? Does that not potentially undermine the effectiveness of these regulations?

The department says that it has engaged with NHS England over the past year to understand the changes needed to improve the operation of the performers list. It would be helpful to hear more about what this engagement involved and what concerns were raised. I understand that informal consultation was apparently undertaken with the devolved Governments and regulatory bodies on wider reforms to the performers list. In the light of those, the department says that it considers the changes to be uncontroversial. Were any concerns raised, or absolutely none?

I am sure that the Minister has got the message that while there is no issue with the actual changes, there are many issues with the way in which the regulations have been dealt with. There are great concerns that they may not deliver the impact that the Government seek and, indeed, we all seek—that is, improvement to access to dental care.

I thank noble Lords for their contributions and the noble Lord, Lord Hunt, for bringing this topic before us today. As noble Lords know, I have an interest in this case in that my wife is an overseas dentist, which means I can trump the website search by the noble Lord, Lord Allan, and say that I have filled in these forms myself.

Overall, I am glad that there seem to be shared goals in that we all want to increase the supply base of doctors, dentists and opticians—in this case, the focus is particularly on dentists. Clearly, we all want to maintain high standards and remove unnecessary red tape. That is what we are trying to do here.

I do not think anyone is going to pretend that this alone will be a massive thing. I liken it to Team GB cycling—noble Lords have probably heard me use that example before—where you are looking at 1% and 2% changes and sensible things at the margin that will accumulate over time. The noble Baroness, Lady Merron, asked about some of the July 2022 changes. The noble Lord, Lord Hunt, mentioned the changes to the UDAs and those earlier changes. Each of those on its own will not make a massive change, but the accumulation of all those things will begin to have an impact. That is why it is so difficult to do an impact analysis on any one individual measure, because we are trying to combine all those things to make it into the right space for people to want to do this.

I think we all agree that it seems strange not to trust that the Scottish, Welsh or Northern Ireland NHS has gone through a process good enough that we would automatically use it. It is sensible that we trust them and their standards but have a case to verify afterwards if we need to. I do not know whether it will be reciprocal. I argue that we should do it regardless, because it has to be to our benefit that we are as inviting as possible. I would not be surprised if they follow suit. Funnily enough, if they do not, it might be to our advantage through a narrow NHS England lens and making sure that we have the easiest approach to work and practice.

The other main point is where I really have a personal interest. I hope it will add some colour to the thinking behind this, albeit with a sample size of one. Please take this as an anecdotal experience rather than as a massive data analysis. I have seen that you go through a very thorough GDC process. That is something that I filled out in the context of my wife when we did all this. She had practised and had her own practice in Madrid for about 15 years and was very experienced. She went through a very thorough GDC process to make sure that she was eligible to practise here. She then practised in Manchester and Liverpool at some very high-end private clinics.

We then decided to move to Surrey. She saw that there were a number of jobs on offer that wanted people with private registration, but that it would be helpful if they had NHS as well, because a number of clinics have a hybrid model whereby they will offer both NHS and private treatment. She went down that process and I was involved in it. Eventually, she came to the conclusion that she was doing a hell of a lot of hard work. There was a two-year process and all sorts of courses she needed to take—it was very much a checklist of things to do—so she thought, “Do I really need to do this? I have plenty of private practice anyway”. In the end, she concluded that there was no point. I grant that this is a sample size of one, but I think we can all see that, if someone has been practising for many years to a very high level and can continue doing that, but suddenly there is a load of red tape in the way of becoming an NHS dentist, eventually they would say that it is not worth it. That is what this approach is all about.

It is also about accepting that you need judgment; you cannot put down any hard and fast rules, as was questioned, because every case is going to be different. Part of the problem now is that it is almost a tick-box exercise when looking at their experience. That is what this is designed to do. If a dentist has worked in the private sector or overseas for 10 to 15 years and can show evidence of the different types of treatment they have done, you can be pretty confident—by all means, meet them and talk to them—that they can do that at the NHS level. Those are the judgment calls that they make, and that is where we are coming from.

It is very hard to do an impact statement; to some extent that is what the analysis was on. Obviously there is not a threshold to do it; as I think noble Lords know, the threshold is £35 million in one year or £50 million over a couple of years. It does not reach that threshold, it is hard to do, we want to get on and do it, and if you do not have to do an impact assessment and you are not sure how much you can judge it, how useful is it? The point was made that we need to review that, which is fair. Clearly, there needs to be a process to see how these things are working or not. However, that is best looked at further down the line.

As I look at my notes, I must say very clearly right now that we should apologise for any error made with regard to numbers. I am happy to do that in the event of that circumstance.

On the consultation, it is a similar thing; there was not a requirement to formally consult on this. An informal process was taken through on it all. It was generally thought to be a sensible process, which is why the decision was made to push ahead. There can always be arguments one way or another on whether you should consult, but clearly one will be guided by what the law and the rules are, and, if it is below the threshold, there is no requirement, and that is where the judgment call was made in this case.

I will ask the team to look into the consumer approach, so to speak. I am not surprised, having some experience myself, by the confusion around all of it. All that should be part of this simplification, with everything designed so that there is a simple front door, as it were, and everyone understands how to do it.

On the question of whether putting up the charges for foreign people coming in will be a disincentive, what we are really talking about is people who are already here. Remember that there is a two-step process: you have to pass the GDC set of rules and then you have to try to get on to the performers list. If you pass the GDC set of rules, you will then be practising in the UK and will already have paid for your visa. We are talking about the segment of the dentist population who are already doing that, and who are thinking about expanding into the NHS. That is why it is not a disincentive in that case.

The noble Baroness, Lady Merron, mentioned the decrease in work since lockdown. Noble Lords will recall a previous debate when I said that some dental practices are not doing the level of NHS units that they have been contracted to do. That is why we have now changed it to say that if they do not do that, we will take them away from them—it is use it, perform it, or do not have it. You can definitely see some examples—I will not say how widespread they are—of dentists using the fact that they have the underpinning of an NHS contract for UDAs to then they go out and get private sector work off the back of that, and then only fulfil the units if they have not managed to get the private sector work. We are trying to say that, if they are running the system that way and not fulfilling their end of the contract, we will take it away from them. There is a real incentive to provide it or lose it.

At the end of the day, we need more dentists who can fulfil NHS contracts as well. That is what this is all about: doing it at the margins so you get the hybrid model that, I hope, works.

I have tried to answer as many of the questions as I can. At this point, as ever, I will send a detailed reply after this which will clear up anything else. I am glad that noble Lords generally understand what we are trying to do here and agree with the direction of travel on it all. I hope that we can agree to move forward on this.

I am very grateful to the Minister, and to my noble friend and the noble Lord, Lord Allan, for their comments on the statutory instrument. As ever, I think we have had a very interesting debate.

It was interesting to hear the insights of the noble Lord, Lord Allan, on the website, which I have just tried out. It is easy to use and, as long as you know the name of the dentist, it finds it just like that. If you do not, I am not sure where you are. The other thing is its peculiar language. Why “performer”? That is a very odd name to use for a serious dental professional. What does “status: included” mean? Yes, they are included on the register, but I suggest it needs refreshing, and surely more information can be given. In the GMC, of which I am a member of the board, we too are looking at our registration details for the public. There is an appetite for the public to know more about the professionals—some of them specialise in certain techniques. Picking up the question of Scotland, Wales and Northern Ireland as a whole, I suggest that this is worth having a look at.

The noble Lord, Lord Allan, made a very good point on fees. I understand the issue about unfunded pay increases—we as Ministers have all had to go through some of those tensions—but that seems to be spiting yourself when, let us be honest, we are absolutely desperate for overseas recruitment. Using GMC figures, of the 20,000 or so extra registrants last year, 39% were homegrown, 11% came from the EEA and 51% came from overseas. We need to be very careful about dissuading overseas professionals from coming in, particularly when we know that the expansion in the workforce will take, I do not know, maybe a decade before we see its fruition—certainly with doctors and dentists—on the front line.

I thought my noble friend Lady Merron’s point about the cutback in NHS work post Covid was very interesting. Access issues are getting really worrying in some parts of the country where people do not have the wherewithal to go private. Somehow or other, we desperately need to do something more about access.

On the issue of impact assessment and consultation, I thank the Minister for the apologies about the tie-in statement, but there comes a time for a reset of relationships with the BDA. When the announcement about the extra training places was made, that might have been the time when a short consultation—although I think two weeks is too short—was tactically a good thing to do. Relationships between the department and the BDA are always full of interest—they are sometimes warm; they are sometimes not so great—but you cannot ignore the representative of the profession.

I accept the point the Minister made about sensible incremental changes. Small changes put together can lead to improvements. That is why the SI is welcome overall, as are the measures that we saw and debated recently.

Ultimately, we also need Governments to show more interest in dentistry. They need to understand that the access issues are very serious indeed and that we should not regard dentistry as a kind of marginal addition to the core issue of NHS services. I am sure the Minister will agree that dentists are an essential part of health promotion and healthcare provision in this country. Having said that, I am very grateful and beg leave to withdraw my Motion.

Motion withdrawn.