Legislative Consent Memorandum
Health and Social Care Bill
Draft legislative consent motion
The draft motion, which will be lodged by the Cabinet Secretary for Health and Wellbeing, is: "That the Parliament agrees that the relevant provisions in the UK Health and Social Care Bill introduced into the House of Commons on 15 November 2007 which legislate in devolved areas in respect of provisions relating to the regulation of the healthcare professions should be considered by the UK Parliament."
Background
1. The UK Health and Social Care Bill was introduced in the Westminster Parliament on 15 November 2007. It covers eleven separate policy issues affecting health and social care. It is predominantly concerned with matters outwith the competency of the Scottish Parliament.
2. The Bill includes provisions relating to the regulation of healthcare professions across the UK by UK regulators and inevitably some of those stray into areas devolved to the Scottish Parliament. While the regulation of the majority of the regulated healthcare professions is reserved to Westminster, for those not included in the relevant reservation in the Scotland Act this is devolved to the Scottish Parliament - currently only operating department practitioners, dental nurses, dental technicians, clinical dental technicians and orthodontic therapists. However, in the future this will increase as regulation is extended to further professions.
3. The provisions in the Health and Social Care Bill are part of the implementation of the UK Government White Paper Trust, Assurance and Safety - The Regulation of Health Professionals in the 21 stCentury. That paper, which is aimed at improving patient safety and the quality of care provided by health professionals, formed part of the UK Government's response to the Shipman Inquiry and was endorsed by all four UK countries. The Scottish Ministers have since re-affirmed their commitment to UK-wide regulation, which assists the cross-border flow of staff.
4. The changes to be made through the Bill are only part of the implementation of the White Paper. They will contribute to the rationalisation and harmonisation of the current regulatory systems. The regulation of the healthcare professions is normally put in place through Orders under section 60 of the Health Act 1999, and other changes are to be effected through that route over the next few years as policy evolves in UK and separate Scottish Working Groups. However, some of the policies either cannot be put in place through section 60 or warrant a higher profile, hence their inclusion in the Health and Social Care Bill.
5. Although the Scottish Parliament could take forward its own legislation in the devolved areas, UK-wide regulation, as indicated in paragraph 3, assists the cross border flow of staff. Separate Scottish legislation might lead to the same professional staff being subject to different regulatory requirements in different parts of the UK, and even the possibility of different regulators. This would make little sense and it would not assist the rationalisation and harmonisation of regulation advocated in Trust, Assurance and Safety.
Provisions in the Bill for which consent is sought
6. Some of the provisions in the Bill apply to all the regulated professions and others to all the regulators. This touches on an area in which the Scottish Parliament is able to legislate - the regulation of those professions not included in the reservation in the Scotland Act, as explained in paragraph 2 of this Memorandum.
7. The Bill requires all the regulators of healthcare professions to apply the civil rather than the criminal standard of proof in their consideration of fitness to practise cases. Two of the regulators - the Health Professions Council and the General Dental Council - regulate professions for which regulation is devolved.
8. The Council for the Regulation of Health Care Professionals has oversight over the regulators. The Bill changes the Council's name to the Council for Healthcare Regulatory Excellence (CHRE). The Bill also gives the Scottish Ministers new powers - to request the CHRE for advice on any matter connected with a profession appearing to be a health care profession, and to require that body to investigate and report on a particular matter. The regulation of some professions is devolved. (The Bill also makes provision for one of the lay members of the CHRE to be appointed by the Scottish Ministers; however as this is the status quo no LCM is considered necessary here).
9. The Bill clarifies that there is to be consultation on draft section 60 Orders with all relevant representatives of the professions being regulated. The regulation of some existing professions, and the future regulation of "new" professions are devolved.
10. There is a provision which clarifies that only the regulatory bodies and the new Health Professions Adjudicator can administer procedures relating to misconduct, unfitness to practise and similar matters. Two of the regulatory bodies operate in devolved as well as reserved areas.
11. There are provisions aimed at assisting the implementation in Scotland of new regulatory provisions for healthcare professions as early as possible. These include provisions which will allow Orders in Council made under section 60 of the Health Act 1999 to amend or repeal Acts of the Scottish Parliament. These will be in addition to the existing powers to amend or repeal Acts of the Westminster Parliament, including those relating to Scotland in devolved areas. Where such an amendment or repeal is incidental to, or consequential on, a reserved purpose, the Scottish Ministers must be consulted. The regulation of most healthcare professions is reserved. In addition, there are provisions which will allow more substantive amendments to Acts of the Scottish Parliament (as well as Acts of the Westminster Parliament, including those relating to Scotland in devolved areas) through Orders in Council made under section 60 of the Health Act 1999, where such amendment or repeal is not merely incidental to, or consequential on, provisions relating to reserved areas. Unlike the Orders making consequential amendments related to reserved areas, this second category would be laid before, and approved by resolution of, the Scottish Parliament.
12. There are provisions relating to the regulation of pharmacists and, under the Medicines Act, pharmacy premises. The function of enforcing the Medicines Act is devolved to the Scottish Ministers.
13. Finally, there are proposals to repeal the provision in the Health Act 1999 which prevents Privy Council functions from being exercised by a different person. This will facilitate changes intended to be made in subordinate legislation to put in place new arrangements in various areas where Privy Council involvement is no longer considered to be necessary. This will affect all the regulators, including those operating in devolved areas
To note - extension of regulation to pharmacy technicians in Scotland
14. Certain provisions in the Bill affect regulated healthcare professions/regulators. This includes pharmacy technicians in England and Wales, regulated in terms of the Pharmacists and Pharmacy Technicians Order 2007, and their regulator, the Royal Pharmaceutical Society of Great Britain (RPSGB). There are also provisions which will facilitate the transfer of the regulatory functions of the RPSGB to a new General Pharmaceutical Society in due course. It should be noted that the policy intention is to extend regulation to pharmacy technicians in Scotland (a devolved area) through a forthcoming section 60 Order which will be laid for approval by resolution of the Scottish Parliament as well as Westminster. This is likely to happen while the Health and Social Care Bill is still proceeding through Westminster.
Consultation
15. The White Paper followed extensive consultation across the UK on the recommendations from the reviews of medical and non-medical regulation. The SEHD response to that consultation was informed by four stakeholder events across Scotland. Stakeholder involvement has continued, with further events in Scotland since the publication of the White Paper, and the setting up of UK and Scotland -specific Implementation Working Groups. There is a statutory requirement for a 3-month consultation on section 60 Orders, which will be the vehicle for setting in place the detail of many of the White Paper policies. Regulations to be made by the Secretary of State in the reserved area of the provisions for Responsible Officers in Scotland will only be made following consultation with the Scottish Ministers.
Financial implications
16. There are potentially significant financial costs for the UK arising out of the regulation White Paper, but policy is still being further developed in Working Groups and the original estimates will be reviewed as implementation work progresses. Some of the costs will fall on the regulators, who will pass them on to the regulated professions in the form of increased registration fees. It is not expected that significant costs for Scotland will arise out of the Bill's provisions in the areas explained at paragraphs 7 to 13 of this Memorandum. None of the cost of setting up the new Independent Adjudicator will fall on Scotland as the body is now to be set up initially to adjudicate in reserved areas (for doctors and opticians) only.
Scottish Government
Health Directorates
November 2007