Report on the Health and
Personal Social Services Bill
(NIA Bill 3/00)

The Committee for Health, Social Services and Public Safety is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Standing Order No. 45 of The Northern Ireland Assembly. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Health, Social Services and Public Safety, and has a role in the initiation of legislation.

The Committee has the power to:

• consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
• approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
• call for persons and papers;
• initiate inquiries and make reports;
• consider and advise on matters brought to the Committee by the Minister of Health, Social Services and Public Safety.

The Committee has eleven members, including a Chairperson and Deputy Chairperson, and a quorum of five.

The membership of the Committee since its establishment on 29 November 1999 has been as follows:

• Dr Joe Hendron (Chairman)
• Mr Tommy Gallagher (Deputy Chairman)
• Ms Pauline Armitage
• Mr Paul Berry
• Mrs Joan Carson
• Ms Carmel Hanna
• Mr John Kelly
• Mr Alan McFarland
• Ms Monica McWilliams
• Ms Sue Ramsey
• Mrs Iris Robinson
• Rev Robert Coulter (replaced Mrs Carson with effect from 11 September 2000)

All correspondence should be addressed to The Clerk of the Health, Social Services and Public Safety Committee, Room 419, Parliament Buildings, Stormont, Belfast, BT4 3XX. The telephone number for general enquiries is: 028 9052 1677.

In Attendance: Mr George Martin (Committee Clerk)
Mr Dermot Harkin (Assistant Committee Clerk)
Mrs Valerie Artt, (Executive Support)
Mrs Kerry McFerran (Administrative Support)
Mr Tim Moore (Research Services)

4. Health and Personal Social Services Bill (NIA Bill 3/00): Committee Stage

Panel Members: Mr Paul Martin, Assistant Chief Inspector, SSI
Ms Maire McMahon, Inspector, SSI
Ms Pat McAuley, on secondment from CCETSW
Mr Robin MacRory, Legislation Branch

The Committee deliberated on the Health and Personal Services Bill:

That Clauses 1 to 19 and Schedule 1 stand part of the Bill.

• In relation to Clause 2, the Department will inform the Committee about the result of its discussions with the NIO (given its non-devolved status) on the issue of the registration of social care workers deployed within the criminal justice settings.
• As a follow-up to Clause 18 Mr Martin offered to provide further information on the overall budgets for the introduction and running of the Council. He will also provide the Committee with an account of the Department's consultation procedure with NIPSA in relation to Part I of the Bill, and confirm that registration as a social care worker does not preclude a person from being a member of a Trade Union organisation.

That further consideration of Clause 20 be deferred in order to give the Department time to re-examine Clause 20 (3) (e), which excludes certain establishments as "children's homes", with a view to closing a potential loophole in the legislation.

• In relation Clause 20 the Clerk will write to the DoE to obtain clarification on its definition of "residential care homes" for planning purposes.

That Clause 21 stands part of the Bill.

That Clause 22 (which deals with interpretations) be reconsidered at a later date when the Department provides the definition of "school" as laid out in the Education and Libraries (Northern Ireland) Order 1986.

In the context of Clause 22 the Department will further advise the Committee of the result of its liaison with the NIO in relation to the inconsistency between the definition of a "child" under the Bill, which is a person under 18, and that of the Juvenile Justice Order, which defines a "child" as a person under 17.

Panel Members: Mr Andrew Hamilton, Director of Finance
Mr Stephen Popplestone, Finance Official
Mr Robin MacRory, Legislation Branch

That Clauses 23 to 36 stand part of the Bill.

That Clause 37 be reconsidered after the Department provides a full definition of "owner" within the meaning given in Article 2 (2) of the Road Traffic (Northern Ireland) Order 1995. This was a concern raised in relation to motor insurance liability, particularly in the context of authorised drivers and company cars. The Departmental Officials also agreed to consider the applicability of this Clause to a road-racing situation.

That Clause 38 stands part of the Bill.

In Attendance: Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Committee Clerk)
Mrs V Artt (Executive Support)
Mrs K McFerran (Administrative Support)

As the Clauses to be considered fell within the separate remits of each of three teams of Departmental Officials, the Chairman advised members that the corresponding groups of Clauses would be examined in turn in order to facilitate the Committee's consideration of the Bill.

Departmental Officials: Mr Derek Baker, Director of Primary Care
Ms Sheila Barfoot
Mr Basil Gibson
Ms Beatrice Major

The Committee deliberated on the Health and Personal Social Services Bill.

That Clauses 39, 40, 41, 42 and 49 and Schedule 2 and Clause 55 and Schedule 3 stand part of the Bill.

Dept Finance and Personnel Officials: Mr George King
(General Register Office) Mr Stanley Campbell

Departmental Officials: Mr David Bingham
Mr Herbie Vance
Mr Chris Wallace

That Clauses 53 and 56, and Schedule 4, stand part of the Bill.

In Attendance: Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs V Artt (Executive Support)
Mrs K McFerran (Administrative Support)

3. Health and Personal Social Services Bill (NIA Bill 3/00): Committee Stage

As the Clauses to be considered fell within the separate remits of each of three teams of Departmental Officials, the Deputy Chairman advised members that the corresponding groups of Clauses would be examined in turn in order to facilitate the Committee's consideration of the Bill.

Departmental Officials: Mr John McGrath
Mr Hugh Farren
Ms Margaret Rose McNaughton

The Committee deliberated on the Health and Personal Social Services Bill.

That Clauses 43, 44(2) and 52 stand part of the Bill.

• Whether the wording in relation to the three sets of persons referred to could be made more straightforward.
• Whether consideration has been given to the rights of the person about whom the Commissioner would be disclosing information, and whether that person would have right of appeal.

• Whether the Health and Social Services Councils are included in this or an earlier piece of legislation.
• Whether the Department will be issuing a Directive to cover the arrangements for public meetings, including individuals' speaking rights. The Committee also wishes to be consulted on the Directive before its issue.

Part III - Clauses 44(1), 45, 46, 47 and 48

Departmental Officials: Mr Andrew Hamilton
Ms Deborah McNeilly
Mr Neville Jones

That Clauses 44(1), 45, 46, 47 and 48 stand part of the Bill.

Part III - Clauses 57 to 61 (inclusive)

Departmental Officials: Mr Robin MacRory
Mr Campbell Taylor

That Clauses 57 to 61 inclusive stand part of the Bill.

The Committee will reconsider all of the Bill's outstanding Clauses at its meeting scheduled for 6 December, at which the relevant Departmental Officials will be requested to re-attend.

In Attendance: Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs K McFerran (Administrative Support)

4. Health and Personal Social Services Bill (NIA Bill 3/00): Committee Stage

As the Clauses to be considered fell within the separate remits of each of three teams of Departmental Officials, the Chairman advised members that the corresponding groups of Clauses would be examined in turn to facilitate the Committee's consideration of the Bill. The Department had provided advance written responses to each of the Committee's questions raised at previous meetings.

Departmental Officials: Mr Paul Martin
Ms Pat McAuley

The Committee deliberated on the Health and Personal Social Services Bill.

In relation to Clause 2, Mr Martin advised that, following discussion with the Department, the NIO has now agreed that relevant staff in probation and juvenile justice settings should be regulated by the Social Care Council as a condition of their employment. Ms Ramsey requested that this decision be minuted as being a positive step forward.

Further to its query on Clause 18, the Committee was satisfied with the Department's figures showing the anticipated running costs and fees associated with the Social Care Council.

Although Clause 21 had been previously agreed, the Chairman will raise with the Assembly Executive the Committee's concern about the inconsistency between the Department's Registered Homes Order 1992 and the DoE's Planning (Use Classes) Order 1989 in their respective interpretations of residential care homes.

In its Report on the H&PSS Bill the Committee will recommend that, during the Criminal Justice Review, the NIO should give consideration to changing the definition of a child under the Criminal Justice (Children) (NI) Order, which is a person aged under 17, to reconcile with the Children (NI) Order's definition, which is a person aged under 18.

That Clauses 2, 18, 20 and 22 stand part of the Bill.

Departmental Officials: Mr Andrew Hamilton
Mr Stephen Popplestone

That Clause 37 stands part of the Bill.

Departmental Officials: Mr John McGrath
Mr Hugh Farren
Ms Margaret Rose McNaughton

Mr McGrath explained that, in response to the Committee's concerns previously stated, the Minister has requested that Departmental Officials draft an amendment to Clause 50 in order to simplify its wording.

He advised that, in deference to the Committee's concerns, the Minister has also requested that Officials amend Clause 54 to extend public access to meetings to include HSS Councils in the list of bodies.

That Clauses 50 and 54 stand part of the Bill.

In Attendance: Mr G Martin (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mrs V Artt (Executive Support)
Mrs K McFerran (Administrative Support)

3. Health and Personal Social Services Bill (NIA Bill 3/00): Committee Stage

The Committee considered and agreed the Department's draft amendments to Clauses 50 and 54, which will be introduced at the Consideration Stage.

The Committee agreed Clauses 1 to 61 and Schedules 1 to 5 inclusive of the Health and Personal Social Services Bill (NIA 3/00).

Draft Report on the Health and Personal Social Services Bill (NIA Bill 3/00), proposed by the Chairman, brought up and read.

• That the draft Report be read a second time, paragraph by paragraph.
• Sections 1 to 9 read and agreed to.

• That the Report be the Second Report of the Committee to the Assembly.
• That the Report be printed.

1.

The Chairperson: This is the Committee Stage of the Bill, which we will work through clause by clause. Mr Martin, you may introduce the clause, and we will then begin the questions.

2.

Mr Martin: I will give you some background which will facilitate your deliberations this afternoon.

3.

Part I of the Bill before you for discussion is about the establishment of a regulatory body for the social care workforce. That is not a new idea in social care, for it has existed for many years and was eventually given the push ahead through the Government's modernisation programme in 1997. To develop this particular issue in Northern Ireland, we established a small steering group under the chairmanship of Dr McCoy in 1998.

4.

On 2 October 1998, we issued a consultation document that was sent to over 350 bodies in Northern Ireland, taking account of employer and employee interests, unions, political parties, and so on. We followed that up over a four-month period with 25 face-to-face discussions with the full range of interests, and by February 1999, when the consultation period ended, we had received 66 formal written responses. Those people who responded agreed unanimously that a social care council should be established to regulate the workforce here and that we should seek to include the totality of our workforce.

5.

There is a clear majority view that this should be an open and publicly accountable body, which is accountable to Government, as opposed to a self-regulatory body. We noted those responses and developed a proposals paper which was presented in July 1999 to the then Minister, Mr McFall. He approved it, but it was agreed that the matter should be left for consideration by the Assembly. In August 2000, the Minister of Health, Social Services and Public Safety, Ms de Brún, presented the matter in the form of a policy paper regulating the social care workforce, and we made this available to you in September. It is important to say that work is still ongoing with the nuts and bolts of this council.

6.

A major project currently being worked on relates to the establishment of codes of conduct and practice, and we are doing it across England, Scotland, Wales and Northern Ireland. Pat McAuley will be a member of a small group delivering the codes of conduct and practice for us. It is to be hoped that early next year there will be new consultation on the lead up to that. Once we have a draft copy, it will be subject to further consultation across the full range of interests, and it will be made available to this Committee for your scrutiny.

7.

The other major project being taken forward on behalf of the four countries relates to registration, and we hope to have a draft registration scheme by the end of March 2001. Again, consultation is taking place with interests in Northern Ireland ondeveloping that draft. The final draft will be subject to consultation with a full range of interests, and it will be made available to this Committee.

8.

The project focuses on three key areas - the register and admission process, suspension and removal from the register, and publication and updating of the register. Those are three separate phases, although there will be links and overlaps between them.

9.

In conclusion, much of the detail still needs to be resolved, and that will be included in the rules and regulations, which will also be made available for your scrutiny.

10.

Mr Chairperson: Clause 1 is straightforward. Schedule 1 is the constitution of the social care council? Is that correct?

11.

Mr Martin: That is correct.

12.

Mr Chairman: I am happy with the detail, but I want my colleagues to look at it. I would like Mr Martin, or my colleagues, to comment on clause 1, or if you are happy with it we can move on to clause 2.

13.

Mr Berry: Does the status of the Northern Ireland Social Care Council apply to other areas or bodies, such as servants or agents of the Crown?

14.

Mr MacRory: That is the normal status for a non-departmental public body. All HSS trusts have the same status, as has the Mental Health Commission and the equivalent English council.

15.

Rev Robert Coulter: What methods will be used for appointments to the council? Will there be public advertisements?

16.

Mr Martin: All appointments to the council will be subject to the rules set out by the Commissioner for Public Appointments. All appointments of council members and the chair of the council will be subject to these rules.

17.

The Chairperson: We will move on to clause 2, which covers social care workers. In one of our earlier discussions, Mr Martin, we went into some detail about whether the term "social care worker" really refers to everybody working in this field. There is a wide field of people working in social work. Is that correct?

18.

Mr Martin: The term "social care worker" refers to professionally qualified social workers. In other words, social workers who have received a qualification approved by the existing Central Council for Education and Training and Social Work. The "social care workforce" refers to everyone engaged in the provision of social care services where there is a personal care component.

19.

Ms McMahon: We have tried, in this part of the Bill, to identify the areas where they would be employed in the various departments, for example, children's homes, residential homes, nursing homes, day-care settings and domiciliary provision.

20.

The Chairperson: People who in the past were called social worker assistants - I do not think that terminology is used any more - were generally able, intelligent women who had reared their families and who had no qualifications but did a good job. Is it true that in recent years there has been some training provided for them, and that such people are included under the heading of social care worker?

21.

Ms McMahon: That is correct, and they must be registered.

22.

Rev Robert Coulter: Could I have clarification on 3(b), which mentions: "a person engaged in the provision of personal care or a any person"

23.

What exactly does that cover? Would that cover family members?

24.

Ms McMahon: No, it would not. Family members would not be included in the definition of the social care worker; it includes any others engaged in providing personal care - that is assistance with bodily functions or other social care tasks. It would cover day-care workers who assist people in their own homes, such as home helps.

25.

Rev Robert Coulter: If this clause were challenged in court, how would you defend it, as it is now written?

26.

Ms McMahon: In relation to family members?

27.

Rev Robert Coulter: In terms of the phrase: "a person engaged in the provision of personal care for any person".

28.

Mr MacRory: Subsection 3 allows us to make regulations to cover persons engaged in the provision of personal care for any person. Therefore, we have the option of including classes of people. We would certainly not include family members. It will be specified in the definition.

29.

Mr McFarland: Schedule 2 explains the theory of clause 2.

30.

The Chairperson: No. You have schedule 1 under clause 1. Schedule 2 is further away from that, and it has nothing to do with clause 2.

31.

Mr J Kelly: Is there a problem about the registration of counsellors, or is that merely an ongoing discussion?

32.

Mr Martin: No decision has yet been taken on whether counsellors should be included. There is provision in the Bill to include them. The issue is currently being addressed in the project to which I referred in my opening remarks. Discussions are ongoing with the British Association of Counsellors and the Irish Association of Counsellors.

33.

The British Association of Counsellors is currently reviewing the robustness of its register in its protection of the public and those who use counselling services. We are currently working with the association, and we will not make decisions until we know the outcome of that review. However, there is provision in this legislation to include counsellors, should that be deemed appropriate.

34.

Mr J Kelly: What is the position in the rest of Ireland? Is there a register of counsellors?

35.

Mr Martin: There is a register of counsellors at present, but it is voluntary. That being so, there are concerns that it does not sufficiently protect those who use counselling services. The Republic is seeking to address that problem in its current review.

36.

Mr Gallagher: Why is there is no intention to register voluntary carers?

37.

Ms McMahon: There will be provision in the regulations to consider whether voluntary carers should be included. That will be considered at the next stage. They are not excluded at this point.

38.

Mr Gallagher: Why not include them now? You must have some reason for not including voluntary carers.

39.

Mr Martin: There is a question of scope in relation to registration. The issue of whether we would include volunteers was raised during the consultation process. A whole raft of volunteers, including carers, is engaged in different aspects of social care. The provisions allow for them to be included in due course, but they are not in line for immediate registration. In the fullness of time they may be registered and under the legislation, as it is before the Committee, they can be included.

40.

Mr MacRory: This is a distinction between subsection (2) and subsection (3). Subsection (2) covers people who will be categorised as social-care workers immediately, while subsection (3) will allow us to bring others in as necessary.

41.

Ms Ramsey: On that distinction between subsections (2) and (3), is there any guarantee that people who are working in a voluntary setting will be able to withstand the scrutiny of the regulations? If I go to work in a children's home as a volunteer, I am not subject to the same scrutiny as somebody who is employed in a children's home.

42.

Mr Martin: Anyone who is employed in a children's home will be subject to scrutiny.

43.

Ms Ramsey: Does this include volunteers?

44.

Mr Martin: However, at the moment we have provision to ensure that anyone working with children or adults with learning disabilities is, at the very least, subject to scrutiny by the pre-employment consultancy service. Anyone wishing to engage a person to work in a children's home, or a home providing for people with learning disabilities, must consult the pre-employment consultancy service. It checks for character and criminal offences.

45.

Ms McWilliams: Will probation officers be regulated?

46.

Mr Martin: Probation officers, at this point in time, will be regulated under this, because social work is currently the recognised qualification for probation officers in Northern Ireland.

47.

Ms McWilliams: A difficulty for us at the later stage - and it may not apply to other jurisdictions - will be the issue of what power has been reserved and what has been transferred.

48.

Mr Martin: Absolutely. We have had discussions with the Northern Ireland Office about those working in criminal justice settings. We are currently awaiting decisions from it. It is not a devolved matter at this stage.

49.

Ms McWilliams: Are you waiting for a response on that topic or on something else that you have written to them about?

50.

Mr Martin: We wrote to them about the people who provide care services places such as Lisnevin. There is no issue with regard to probation officers. The Probation Board and the Northern Ireland Office fully accept that professionally qualified workers should be subject to registration with the council.

51.

Ms McWilliams: Could the Clerk liaise with Mr Martin on that issue? It would be useful to the Committee. We have been fixated on that issue for some time. It is pertinent to Northern Ireland and, obviously, it does not happen elsewhere.

52.

Mr Martin: That is correct. We would be happy to do that.

53.

The Chairperson: We are happy with clause 2, so we will move on. We will take clauses 3 to 7 together, as they all deal with registration. Do you wish to comment further, Mr Martin, before we go ahead?

54.

Mr Martin: The registration project that the National Institute for Social Work is taking forward is considering the detail, since it relates to Scotland, Wales, and England as well. Obviously, we recognise the importance of alignment.

55.

Mr Berry: I would like some clarification on clause 3(3), which states: "The Department may by order provide for a specified part of the register to be closed, as from a date specified by the order".

56.

What would happen in the case of social care workers who had not registered before the Department closed the register? Would such people be acting outside of the law? There seems to be some confusion.

57.

Mr Martin: That provision would allow the council to respond to changing patterns of service provision. In time, certain parts of the register may cease to be appropriate. In fact, it relates to Prof McWilliams's comments. At some stage in the future, certain people recognised today as part of the social care workforce may be recategorised as part of another. The clause simply allows the council to take account of that, and allows the Department to close parts of the register that are no longer appropriate or included in the definition of the social care workforce.

58.

Mr Berry: That is fine.

59.

The Chairperson: Would any other colleagues like to comment on clauses 3, 4, 5, 6 or 7?

60.

Ms Ramsey: We asked many of these questions last week, and we got the answers.

61.

The Chairperson: We will move on to clause 8, which deals with the enforcement of registration.

62.

Ms McWilliams: Wearing my gender hat, I note that the clause refers to a social care worker as "he". Up until now, we have referred to "a person". Given that the vast majority of such workers are "female", they may not identify with that term. Can something be done about that, or is it a legal matter?

63.

Mr MacRory: In legal terminology, "he" includes "she". The Interpretation Act stipulates that "he" will be read as "he or she".

64.

Ms McWilliams: They will really identify with that.

65.

Mr Berry: So, "she" could be guilty of an offence as well?

66.

The Chairperson: Instead of saying "he" or "she", the Bill would have to say "it". That would not go down well either.

67.

Mr MacRory: It is a technical matter. That is how the person drafting the Bill does it.

68.

Ms McWilliams: There are many "women" who do not see themselves as being covered by "he". We will have to leave that for another piece of legislation.

69.

Ms Ramsey: We are aware of the problem of people coming here from England, Scotland, some European countries and parts of the Twenty-six Counties. Will the register be available for the purposes of comparison? If somebody is struck off here, will they be prohibited from working in Dublin?

70.

Mr MacRory: We cannot legislate for that, for it is a matter for the Irish Government. However, I believe there will be an exchange of information involving England and Scotland.

71.

Ms McAuley: Information will be exchanged among England, Scotland, Wales, and Northern Ireland. The Republic of Ireland is establishing a register for professions allied to medicine, which will include social care. When it is completed, we will check it against the other registers.

72.

The Chairperson: Is there much discussion on these matters between your colleagues and those in the Republic?

73.

Mr Martin: There certainly is. They are in the early stages of deciding how to regulate all of their - as they describe it - professions allied to medicine, and have identified 17 such groups. They have made contact with us, and we want to deal with the matter, because staff are moving across the border in both directions.

74.

The Chairperson: They are not as advanced as we are in legislation?

75.

Mr Martin: Not at this stage.

76.

Mr McFarland: It deals with England, Scotland and Wales, but under EU regulations, it is theoretically possible to wander around within the EU and take a job in any country - providing you have the relevant qualifications. What links do you have with other European countries in regard to their social worker qualifications?

77.

Ms McAuley: The Central Council for Education and Training in Social Work has a register, which can be used to check qualifications from other European countries. There is no link with other countries' registers of people who are unfit to work, but we do validate their qualifications. I do not know the answer to the question about their having registers we can check. We have established links with other parts of the United Kingdom and the Republic of Ireland.

78.

Ms McWilliams: I think this is a pertinent question for later. I received some information about this from a professor of social work who made the point that some of our social work students graduate after a shorter period than others elsewhere, and therefore their qualification may not be comparable. That impacts on their ability to work in different jurisdictions. However, it probably does not affect their registration.

79.

Ms McAuley: It would not affect their registration here. We are presently holding consultations about the professional training we provide for social work. At the moment, the training is not at degree level, nor does it last three years, so it is not accepted as a professional qualification in other parts of Europe. Many of our social workers are trained to degree level, but some are not - they have a diploma in social work. If they do not have a degree, they cannot work as a social worker in the Republic of Ireland. We are examining that, and the Department will issue a consultation paper later this month dealing with social work training in Northern Ireland and asking again if it should be carried out to degree level.

80.

The Chairperson: It is an offence to describe oneself as a social worker with intent to deceive. Over the years, I met people who described themselves as social workers, and I was almost afraid to ask what their qualifications were. The same applies to community workers. Many community workers are outstanding people, but given some of the people I know who call themselves community workers, Saddam Hussein would qualify as a health visitor. Have you had much experience of people trying to deceive by using the term 'social worker'.

81.

Mr Martin: That was an issue raised with us in consultation. To incorporate this protection of title was regarded as an important and useful additional safeguard to protect vulnerable people. You were correct that the issue is related to the intent to deceive, and the response was unanimous on this section to provide additional protection. In the past, people have used the title in order to gain access to children. Therefore it is very important.

82.

The Chairperson: That is a very important point.

83.

Ms McWilliams: I welcome the Bill, for people target this area of work to gain access to children. I am particularly interested in the process used in the conviction of a fine not exceeding level 5. Who holds this person liable, and what is the enforcement procedure? It is fine in legislation, but it is a different matter to enforce it.

84.

Mr Martin: It would be a criminal offence and therefore would be brought to court. Level 4 and level 5 fines are set at £2,500 and £5,000 respectively. The council then has the power to remove people who are guilty of such offences from any relevant parts of the register.

85.

Ms McWilliams: Yes, but the proceedings would be taken through the Director of Public Prosecution (DPP) at which the council may or may not be represented. The person involved is impacting on this and the new legislation will be quoted accordingly.

86.

Mr Martin: Yes.

87.

Ms McWilliams: Is there a role here? That is the case with other prosecutions relating to registers. Without saying too much about organisations such as the British Medical Association, one of the criticisms is that it is an autonomous procedure. It may have implications, but you are suggesting we go down the criminal road and go through the courts.

88.

Mr Martin: It comes back to the council to determine whether or not the offence justifies the removal of the person from the register.

89.

Ms McWilliams: Yes, but what constitutes a criminal offence? Having worked with the courts very closely, I know that it is difficult to specify. In any case, it is set out here who you suggest is responsible for the proceedings.

90.

Ms McAuley: He may not be on a register; he may be outside the remit of the council.

91.

Ms McWilliams: Yes, there should be criminal proceedings regardless of whether a register exists, but the legislation provides for these. What are the various steps? I understand that the register or council is made aware of the allegation, proceedings are taken and the person, if they have been on a register - even though they should not have got on it - [Interruption]

92.

Mr Martin: They could be included on it in another category.

93.

Ms McAuley: They could be on it in a lower level.

94.

Ms McWilliams: Does the council then hold a meeting? What happens beyond that stage - the legislation stops there?

95.

Mr Martin: Are you asking how the council will proceed?

96.

Ms McWilliams: Yes, we may need to include something in the legislation.

97.

The Chairperson: Are you talking about clause 8(5)?

98.

Ms McWilliams: Yes, the enforcement of clause 8.

99.

Mr McFarland: If I were to refer to myself as a social worker in conversation, it would be considered a criminal offence - if I intended to mislead someone. Presumably, I would be arrested and prosecuted, and the DPP would take the case. How does that scenario interface with the council? I am also interested in how the process will work.

100.

Mr Martin: We would then come back to the council if the person involved were registered. The council would then decide on the appropriateness of removing that person's name from the register. The rules would dictate how the Council would deal with that, however they have not yet been devised. Part of phase 3 of the registration project will address the nuts and bolts of that. I am not ducking the question, for that is the present situation.

101.

Mr McFarland: Can the Department decide that an action constitutes a criminal offence, without liaising with the criminal justice system?

102.

Mr MacRory: The Department would not decide if a person had committed a criminal offence, the court would do that.

103.

Mr McFarland: If many people illegally called themselves social workers then 10,000 cases would be added to the DPP's list in Northern Ireland every year. Have the DPP and the criminal justice system been made aware that this will constitute a criminal offence? What effect will this Bill have on the criminal justice system and the courts? Before the Bill was produced, I presume someone discussed it with the legal profession.

104.

The Chairperson: The key words are "intent to deceive".

105.

Mr McFarland: Has anyone explored how making this a criminal offence might affect the criminal justice system?

106.

The Chairperson: I cannot answer that.

107.

Mr McFarland: I am asking the Department.

108.

Ms McWilliams: I do not mean to speak on behalf of the Department but it is up to the courts, and not the legislation, to familiarise themselves with pieces of legislation that are passed by the Assembly. It is only after it is passed that they pick it up for themselves and put the resources in place accordingly.

109.

Mr MacRory: It is important that any individual who uses this title to seek access to children, by some form of subterfuge, should be prosecuted as a criminal offence.

110.

Mr McFarland: I am not questioning that. I am concerned that we are creating a criminal offence that did not exist before. It could have ramifications for the system if 10,000 cases were passing through the courts each year. The Department has decided to do this, and it will be up to the legal system to sort out how it will cope with it once we have passed it in law. It would make sense to check if there would be implications for them before we deem this a criminal offence.

111.

The Chairperson: I welcome the principle of this. When the legislation is passed, the relevant public bodies will be aware of it. While I can see Mr McFarland's point, I have no doubt that the legislation is necessary. There may be some problems, but over time people will understand and will be aware of what is happening. The crime is in the intention to deceive.

112.

Mr McFarland: I am not questioning any of that. It worries me slightly, and we should consider parking this bit until we take advice from, for example, the Office of Law Reform, which looks at legislation on its passage through the various stages.

113.

Ms McWilliams: That applied only to civil law, not criminal.

114.

Mr McFarland: Who looks at criminal law?

115.

Ms McWilliams: The Director of Public Prosecutions (DPP). Its own department has resources. I can reassure you by telling you that this happens every day. We adopt a great deal of criminal legislation which has already been introduced in Great Britain, and amendments are made all the time. This had to be done with the human rights legislation, which was massive, and huge amounts of resources were needed. Obviously this is a similar case. They will not be swamped. But even if they are, we have made the point. I do not think we should park it; I think we should move on.

116.

Mr McFarland: What concerns me is that there is a question of principle as to how we in the Northern Ireland Assembly should conduct our law-making process. At the moment it does not matter, because criminal justice rests at Westminster, and we do not care how much money it costs to do anything. However, there is an aim - by the end of next year, if all goes well - to have policing and criminal justice returned to our responsibility in the Assembly, under a Committee similar to ours. The finance available for that will not be from a bottomless pit as it is at the moment, and it will not be flung at Westminster. Those will be part of the Northern Ireland block, and introducing laws that cost large amounts of money will have ramifications. Would this system benefit us as a Committee? The problem is that the moment we pass this it becomes the responsibility of this Committee, and this is a line-by-line assessment to make sure the Department has got it right. If we agree to something that is wrong, it will rebound mightily on this Committee, and we will look very silly. Under normal circumstances, it would be reasonable to liaise with the DPP on the general principle of introducing a new criminal offence.

117.

Mr MacRory: Criminal offences in Northern Ireland bills are reserved matters, and the Secretary of State's office in London and the NIO have already been consulted on these offences.

118.

Mr McFarland: That was my first question. Has anyone been consulted on this, and has it been cleared that these are criminal offences?

119.

Mr MacRory: We thought you were talking locally about the DPP. The NIO is aware that these offences are being created in this Bill.

120.

The Chairperson: The Secretary of State can take action -

121.

Mr MacRory: Yes, we already have permission from the Secretary of State to proceed with this Bill with those included.

122.

Mr McFarland: My question was if we consulted on making this a criminal offence. If the answer is yes, then the last five minutes have been unnecessary.

123.

The Chairperson: I will be guided, Mr Martin, by you and your colleagues on this point.

124.

Mr Martin: Yes, it applies to all legislation.

125.

The Chairperson: We will move on to clause 9, which covers Codes of Practice. Mr Martin touched on that earlier. At present, there exist no generally agreed codes in this regard.

126.

Mr Martin: That is correct.

127.

The Chairperson: In principle, therefore, we would very much welcome that. Colleagues have had time to study this and if anyone would like to ask Mr Martin -

128.

Ms Ramsey: Are we saying that we agree that these clauses should go ahead and that the council will decide its own rules and regulations when appointed?

129.

Mr Martin: Those rules and regulations will be subject to the approval of the Department.

130.

Ms Ramsey: I do not have much faith. Are you saying that the Department will set the rules and regulations?

131.

Mr Martin: Ultimately it will be yourselves, as the Government who do this.

132.

Ms McAuley: There will be further consultation.

133.

Ms Ramsey: There will be consultation?

134.

Mr Martin: I am sorry. I should have qualified that, Ms Ramsey. The codes of conduct, we hope, will be prepared in draft form, for consultation in the early part of next year.

135.

The Chairperson: Are those decisions on the codes of practice made by yourselves, the Department, or does it come before us in subordinate legislation?

136.

Ms McAuley: Codes of practice and conduct will be part of the rules drawn up by the council. They will not be part of regulations that would be subordinate legislation. The council will be consulting widely on the codes of practice, once they are drawn up. The final draft should be available next April or May.

137.

Mr McFarland: Do we have sanctions if these are breached or that part of the business of fines under level 4 or 5?

138.

Ms McAuley: It is part of the criteria we would use in looking at the conduct of someone on the register, considering their conditions of registration and measuring those against the codes of conduct and practice which they have signed up to. Employers will be expected to implement their own codes of conduct, which relate to such issues as engaging staff, recruitment and policies in relation to complaints. That will be enforced with employers through the regulation on service. We do have powers to influence.

139.

The Chairperson: Are we happy with clause 9? - [Members indicated assent].

140.

We will move on to clauses 10 to 13, which relate to training. Clause 11 deals with qualifications gained outside Northern Ireland. The council will register professional social workers on the basis of their having gained a recognised qualification. Will the council determine which qualifications are to be recognised?

141.

Ms McAuley: At the moment, that is undertaken by the Central Council for Education and Training in Social Work. This function will be transferred to the new council.

142.

Going back to the earlier question on registers, if there is a register in other European countries, we would look into that as well. Up to now we have not been investigating this.

143.

The Chairperson: Language would come into it as well, I assume.

144.

Mr J Kelly: Clause 10(1) and (2) states

"The Council may, in accordance with the rules made by it, approve courses in relevant social work for persons who are or wish to become social workers. An approval given under this section may be unconditional or subject to such conditions ."

Does this mean you reserve the right?

145.

Ms McAuley: This is to ensure consistency and quality across all social work training programmes.

146.

Mr Kelly: At that part where you say "may be unconditional or subject to such conditions as the Council thinks fit", are you saying that you are the final arbiters?

147.

Ms McAuley: These powers are the exact powers that the Central Council for Education and Training in Social Work has at the moment. We can approve courses, give conditional approval or ask them to make changes. This is to ensure that there is consistency and quality across programmes.

148.

Ms McWilliams: This is something that you cannot deal with in legislation but we are concerned about it. As regards clause 11, if CCETSW stands down and the passage of the Bill takes some time, what happens in the transitional period?

149.

Ms McAuley: The only person who can allow the CCETSW to stand down is the Secretary of State for Health because that body exists under UK legislation. He will not do that while he is satisfied that CCETSW has a function to fulfil anywhere in the UK. It would not be stood down.

150.

Ms McWilliams: So, that matter is resolved.

151.

Ms McAuley: It does not apply here, because it is included in Great Britain's legislation.

152.

Ms McWilliams: So the clause was included in Great Britain's legislation and it also applied to devolved regions.

153.

Ms McAuley: Yes. It would apply while the functions were still outstanding in any of the regions.

154.

Mr Martin: Northern Ireland was actually named in that legislation.

155.

Ms McWilliams: I was not aware that Northern Ireland was named in Great Britain's legislation.

156.

The Chairperson: Is everybody happy with clauses 10 through to 13? - [Members indicated assent].

157.

Let us move on to clause 14, which deals with the functions of the Department. It allocates functions to the Department of Health, Social Services and Public Safety, which can then be delegated to the council. The Department may authorise any person to exercise these functions and it will be able to choose an appropriate person to carry them out efficiently and effectively.

158.

Mr Martin: Those functions are currently carried out by the training organisation for personal social services here.

159.

Ms McWilliams: Are they held by the training organisation and not by CCETSW?

160.

Ms McAuley: No, the Training Organisation for Personal Social Services (TOPSS) is a sub-committee of CCETSW. This part of the Bill deals with the functions of the training organisation that will be taken on by the council.

161.

Ms McWilliams: So, although the central part of the training in social work will be stood down at council, the sub-committee part will be transferred to the Department.

162.

Mr Martin: The functions will be moved to the new council.

163.

Ms McAuley: The council will have three roles. It will have the training organisation functions; the regulation of training and education, which is what CCETSW did; and the regulation of the workforce.

164.

Ms McWilliams: So the council will, in turn, liaise with the universities concerning the accreditation work et cetera.

165.

Ms McAuley: That is correct.

166.

Mr Martin: We thought that that would be the best and most cost-effective way of delivering it, unlike in England, where the training organisation is being kept separate from the council. We, like Wales and Scotland, will house the training organisation functions within the council.

167.

Ms McWilliams: Some people here are familiar with this issue. Have any concerns been expressed about this by the universities or those carrying out the training? I am familiar with the involvement of this issue in education over the last number of years.

168.

Ms McAuley: I think it was welcomed because the training organisation will look at occupational standards and it will work with employers to find the most effective training of the workforce to ensure quality. CCETSW will work with the awarding body concerning awards and qualifications and also with the universities with regard to delivery. This will really enhance the dialogue.

169.

Ms McWilliams: But CCETSW will no longer exist.

170.

Ms McAuley: It will still be part of the council. It will be included within the council's three roles.

171.

Ms McWilliams: So it will still be the awarding body.

172.

Ms McAuley: Yes, that will be the case for the present, and for the foreseeable future.

173.

Mr Martin: There were some concerns but, as was read earlier in our consultation documents, they were related to worries that the functions of this training organisation were disappearing. The reassurance that we were able to offer was quite simply that the functions identified - workforce analysis and development of training strategies - were not disappearing, but were simply being transferred to the new Social Care Council.

174.

Ms McWilliams: Would I be right in saying that no independence is lost in taking to the Department what was a separate agency, but which now becomes the awarding body?

175.

Ms McAuley: The Central Council for Education and Training in Social Work (CCETSW) has always been the awarding body and the Training Organisation for Personal Social Services (TOPSS) has been a sub-committee of it anyway, so I do not think that is an issue. TOPSS, the sub-committee, has been employer led. Concerned parties have not so much been universities but employers, because they want to make sure that their voice is heard, that we deliver the qualifications they want, and that we do not just have some pie in the sky notion.

176.

This is quite detailed work and it will be up to the chief executive to make these final decisions. The device has been to try to keep a separate committee structure, at least for those three arms, especially as TOPSS can get some money from the Department for Education and Employment. If you are seeking funding, you need to have an identifiable training organisation within the council. For example, last year they gave us funding to do work with users and carers, so the Department for Education and Employment would want to know that there was a separate committee structure for the training organisation.

177.

The Chairperson: Is clause 14 agreed to? - [Members indicated assent].

178.

We will move on to clause 15 which gives individuals the right of appeal to an independent tribunal, which will be the tribunal presently established under the Registered Homes (Northern Ireland) Order 1992. That is an important point. Individuals will have the right of appeal against decisions of the council in respect of registration etc. That tribunal exists already, but it will now operate under the new name of the Social Care Tribunal.

179.

Mr J Kelly: On the tribunal question, have you a mechanism of representation for a person who is suspended, for example? The reason I ask is that there are parallels with the nursing profession where, particularly in geriatric situations, the first thing that happens after a complaint is made is that the nurse or auxiliary nurse is suspended. The second thing that happens is that they are called before the board. After suspension, all they are entitled to is a trade union representative, and it is only if they appeal the decision of the board that they are entitled to bring in legal expertise.

180.

Ms McMahon: The tribunal, as referred to in this part of the clause, is the final stage of all that. It is where the decision has already been taken and they have a right to appeal against that decision. There is a current process, firmly established in the Department, for residential and nursing homes within the Province, where home owners and managers have a right of appeal against a decision that the current board has taken in relation to the closure of their home. A similar procedure would be established here.

181.

The Chairperson: Is everyone happy with clause 15? - [Members indicated assent].

182.

We move to clause 16 - publication of register. Clause 16 requires the council to make its register public. It is intended that the council will make the register available on the internet and will also publish it in hard copy annually.

183.

That seems straightforward enough. Colleagues, are you happy with that? - [Members indicated assent].

184.

We move on to clause 17 - cesser of functions. I understand the word "cesser" to mean cessation. Clause 17 is straightforward. I take it that people are happy with it? - [Members indicated assent].

185.

Then we move on to clause 18 - rules. Clause 18 permits the council to make rules in respect of reasonable charges for its services. In particular, fees may be charged for registration, for approval training and the provision of codes of practice or copies from the register. Are colleagues happy with clause 18? I will assume by the silence that they are.

186.

Ms McWilliams: I do not know if anyone wants to probe the matter further. But, will there be a sliding scale of fees taking account of different pay scales and registration categories, and will that be published? Is that currently the case?

187.

It is sufficient for the record that we have already asked about this level of fees, and we have received an answer on that.

188.

Ms McMahon: Yes.

189.

Mr Martin: Other professions will have had discussions with, for example, the United Kingdom Central Council for Nursing, Midwifery and Health Visitors (UKCC), where a £10 registration fee is levied. This is a result of the diversity of our workforce; we have given our answer, so we really need to ensure that it reflects the different levels of income which people have.

190.

Ms McWilliams: This is one of the difficulties surrounding the registration of childminders. Originally, the fee was reasonable, and childminders did not feel it was too onerous, but it has increased substantially. It is approximately £50 now, and childminders tell me that the expense deters some of them. We do not want this to happen. Along the continuum of social careworkers, there are reasonably well paid professionals, but there are also those who are eligible for family credit because of low pay.

191.

Mr Martin: Those will be set within rules will again be subject to broad approval of the Department and this Committee to ensure that the issue you raise is addressed.

192.

Mr MacRory: The registration fee should cover the cost of operating and maintaining the register including staff costs.

193.

Ms Ramsey: On the other question of fees and pay scales. Will these fees cover all the registration costs involved?

194.

Mr MacRory: It is a difficult question, but we will look into it.

195.

Ms McWilliams: We will be keeping a brief on this situation.

196.

Mr Martin: We are keen that you do that, because, once again, we share your concern.

197.

Ms Ramsey: The Bill does state that these fees will cover the Council costs, but not necessarily the registration costs.

198.

Mr MacRory: Initially, the registration cost should cover itself - everybody should pay a fee to cover this. This may not happen but it is the suggestion of the Department of Finance and Personnel.

199.

The Chairperson: This is all part of the package - there would be no further legislation, although it goes back to the question we covered earlier.

200.

Mr MacRory: It will come here for discussion.

201.

Mr McFarland: When the Council is set up, will it be funded by the Department?

202.

Mr Martin: Yes. The council will receive funding from the Department.

203.

Mr McFarland: Is there a projected budget for that?

204.

Mr Martin: Yes. We are currently estimating a budget of £1·4 million.

205.

Mr McFarland: I assume that that £1·4 million does not take into account the approximate 30,000 workers who may register. Presumably someone has taken a registration fee for these people into consideration, and the cost of a computer, staff and postage etc, has also been weighed up. How much more than £1·4 million will that cost the Council, as this figure already seems high? There is the training organisation and the registration group, the latter of which is paying for itself. Is it, then, the training, that is costing £1·4 million?

206.

Mr Martin: No. The current cost for functions undertaken by the CCETSW is more than £720,000.

207.

Ms McAuley: That includes TOPSS.

208.

Mr Martin: It includes the training organisation functions. We estimate that there will be additional costs associated with workforce regulation, the running of the register and so on. We shall eventually need an additional ten members of staff. We shall most certainly require premises that are larger than those currently used by the CCETSW, which are not considered fit for their purpose. They are simply too small, and there are difficulties with wheelchair access and so on.

209.

As you rightly state, there are extra costs associated with information technology, as well as additional legal costs. The registration money or fees would make up part of that £1·4 million. We have an estimated social-care workforce of 30,000, therefore with an average registration fee of £10 per registrant, we immediately calculate that £300,000 will be paid for directly through fees. That is as far as we have been able to develop our plan at this stage.

210.

Mr MacRory: After deduction of the fees, the net cost falls from £1·4 million to £1·1 million.

211.

Mr Martin: Yes.

212.

Mr McFarland: A large proportion of your costs in the first year would be extraordinary. Buying computers, for example, is by and large a one-off cost - expensive, but presumably not constant. We envisage that £300,000 per year will come in from registration.

213.

Mr Martin: That will eventually be the case, but it will take us a number of years to regulate the workforce. As we increase the scope of workforce registration over the years, we shall have to increase the number of staff to cope. It will develop.

214.

Mr McFarland: Included in your budget for the first year are running costs, capital start-up costs, and presumably a slice of the predicted registration money coming in. As a matter of interest, we should like to get a feel for that. The current system costs £726,000. If you take £1·4 million, that represents another £700,000 -

215.

Mr Martin: Yes, that is our projected budget.

216.

Mr McFarland: How much of that consists of start-up costs, and how much is extra?

217.

Mr Martin: It leaves a shortfall of £673,000, which, over time, we believe we shall eventually be able to reduce by £300,000. It will improve over the years as we extend the registration of the workforce.

218.

Mr McFarland: I should like to return to the reason why we started on this theme. You said the charges would cover the cost of registration. However, if a small number of people try to register in the first few years, the charges will clearly not cover the cost.

219.

Ms McWilliams: I do not wish to cut across the discussion, but I believe Mr McFarland's points to be very useful. Perhaps we might get a further briefing note on it at some stage. The issue has budgetary implications and cost potential further down the road, rather than -

220.

Mr McFarland: Ms Ramsey questioned the explanation that the register "will pay for itself", becasue it is fairly clear that it will not. It may eventually do so, but presumably, at least until we are well advanced, we shall need capital costs. I was trying to make clear that there may well be a problem if you expect fees to be high enough to cover registration costs, which will be massive in the first few years.

221.

Mr Chairperson: Mr Martin, maybe at a later date you could supply us with a written note on that particular point. It would be very helpful.

222.

Mr Martin: I would be very happy to give you a written detailed response on that.

223.

Mr Chairperson: Thank-you.

224.

Ms McWilliams: We have had some excellent presentations as part of our inquiry from social workers represented by the Northern Ireland Public Service Alliance (NIPSA). I do not know the answer to the question. The fee that you predict is not too onerous. All these social workers will, by law, have to be registered with you. Will that determine whether they continue to be part of the Northern Ireland Public Service Alliance? I do not know if there has been a case where the establishment of a new registration body has affected representation by another body. We may ask them this. Have you consulted with them.

225.

Mr Martin: NIPSA, along with other trade unions, were party to the discussions we had in November 1998 when consultation was being carried out. They have been involved. I do not know the answer to the question at this stage.

226.

Ms McWilliams: Perhaps we could get a submission from the Northern Ireland Public Service Alliance, particularly in relation to some of these clauses.

227.

Mr Chairperson: We will move on to clause 19 which confers default powers on the Department in respect of the Council. If the Department is satisfied that the Council has failed to discharge any of its functions, without good reason, or that in discharging its functions it has failed to comply with any directions or guidance given to it, this clause confers a two-fold default power.

228.

Rev Robert Coulter: Has the Council any power of appeal? To whom shall they appeal in the event of a dispute over the definition of 'without good reason'? Who would adjudicate in the event of a dispute?

229.

Mr MacRory: The Department and the Minister would have the final say. The power will obviously only be evoked if the Council fails to do its duty.

230.

Rev Robert Coulter: So they have no powers of appeal at all?

231.

Mr MacRory No, they are appointed by the Minister.

232.

Mr Chairperson: Could we make an order that if the Council is in default and nothing happens they can then trigger the second stage. This would be a protective measure.

233.

Mr MacRory: Do you mean an order to take over the functions?

234.

Mr Chairperson: Yes, by the Department or by someone appointed by it.

235.

Mr MacRory: We really do not envisage things becoming so bad.

236.

Mr Martin: The measure is there as a safeguard.

237.

Ms McWilliams: This is not the case if you take Scotland as a model. In Scotland, the examination results system and the creditation process collapsed and you sent out the wrong qualifications to some students. We said that it was unlikely to happen in Scotland yet this happened to its council.

238.

Mr Chairperson: We will move on to clause 20, interpretation of this Part - "children's home". This is obviously very important and it is close to the work that we have been doing.

239.

Mr Gallagher: Planning permission comes under the definition of residential care, even though the application is for the provision of children's care. Planning applications need to be more specific. In future applications from the private sector, or elsewhere, will applicants have to specify that they are applying for a children's home, when this legislation becomes effective?

240.

Mr Martin: The Department of the Environment are responsible for planning.

241.

Mr Gallagher: It will be useful to clarify this. Perhaps we should communicate with the Department of the Environment about it. I am merely respecting everyone's better interests here.

242.

Ms Ramsey: This might seem silly, but a residential care home is not the same thing as a children's home.

243.

Ms McMahon: Under the Residential Homes (Northern Ireland) Order 1992, a residential care home is described as a residential home providing care for adults.

244.

Mr Martin: But this relates to different legislation.

245.

Ms Ramsey: These private homes are being billed as residential care homes, when they provide care for children.

246.

Ms McMahon: There are a number of definitions of a residential care home.

247.

Ms McWilliams: Mr Gallagher is raising an issue that we are all focused on. It is an interesting point that applications are made for planning permission for a residential care home when in fact, it is to be a children's home.

248.

Mr Gallagher: That is correct. There were concerns about it afterwards. Unfortunately, it also caused some discontent, simply because it was felt that the definition was not sufficiently specific.

249.

Mr McFarland: If we are to introduce this different legislation in Northern Ireland a set of agreed definitions could be drawn up by the Department. At present, we are looking into secure accommodation residential care. So far, every Committee witness has talked about residential care homes for children, which is the issue we are examining. Are we now saying this is not the definition of a children's home. If so, we are inviting problems with our legislation in the future. The Department should consider providing clearer definitions. For example, in Clause 20 subsection (3)(c), includes within the definition a school at which boarding and lodging are not provided for pupils. Therefore, if you have a prep school, it is called a children's home. Is that correct?

250.

Mr J Kelly: Residential care homes and nursing homes are defined in Clause 21, the criteria of interpretation. It refers to the Registered Homes (Northern Ireland) Order which is very specific about the meanings of a residential care home and a nursing home. Surely, the use of the terms, although in relation to planning applications, is for the planning authority.

251.

Ms McWilliams: Social workers have included children's homes within the definition of a residential care home. We know what happens when it comes to adults. Mr McFarland is saying should all refer to the same thing in future. Perhaps we are making redundant the word residential care home. We ought to refer specifically to children's homes from now on. By that, we mean a place where children are residentially cared for.

252.

Ms Ramsey: We all talk about residential care homes and assume that they are homes for children. The difficulty is that within the Planning Authority, the application goes up to build a residential care home, people assume that it is a children's home. You now tell us that residential care is specifically directed at adults.

253.

The Chairperson: This is an important issue. Any terminology we, or the Department, use, especially terms relating to children, must be clearly defined so that we understand exactly what we are talking about. Otherwise, things could go wrong by default. I am glad that this issue has been raised because it must be resolved.

254.

Mr McFarland: Is a boarding prep school a children's home?

255.

Ms McMahon: Yes - we accept that people who provide social care in those settings and who are not registered with any other body would be required to register.

256.

Mr McFarland: Presumably, teachers in a prep school are registered.

257.

Ms McMahon: They are, under their own council.

258.

Mr McFarland: Must others who come into contact with children, such as the groundsman, be registered?

259.

Ms McMahon: They would be providing social care. Assistant matrons, who are not nurses, may actually dress the children, and provide their laundry and clothes. They would be brought within the scope of this register.

260.

Mr McFarland: Would they have to be registered?

261.

Ms McMahon: Yes. This was the loophole that we felt needed to be tightened.

262.

Ms McWilliams: I commend the tightening of that loophole - it is another example of a loophole in children's boarding schools, and we went straight into it.

263.

Ms McMahon: The regulators of the schools with boarding departments are now enacted in Northern Ireland, so they would be monitoring the employer's provision of that as well.

264.

Mr J Kelly: On the question that Mr Gallagher raised, we should not create the impression that it would be difficult to get planning for a children's home, and it is not fair to ask these people to decide on this.

265.

The Chairperson: We are concerned about the definition of terms, and Mr Martin and his colleagues have been outstandingly helpful. Perhaps we need an amendment to the legislation which defines these terms. That could come through our Committee or from the Department. Do you have an opinion on that?

266.

Mr Martin: The difficulty is that a children's home is defined within the Children (NI) Order 1995. A residential care home is defined within the Registered Homes (NI) Order 1992. While I understand your difficulty, the definitions are covered in different pieces of legislation, and we could provide clearer definitions within those pieces of legislation.

267.

The Chairperson: The Department could provide this in an amendment to the Bill, but I am glad it has been raised, as it is a very important issue. When we bring our report to the Assembly, our Colleagues will ask such questions, so it is important to clarify it. This is not a criticism of anyone, but clarification is needed.

268.

Mr J Kelly: What are you clarifying?

269.

The Chairperson: The definition of children's homes, and the fact that when people seek planning permission for children's homes, vague names are used. It is important that we get this right, so as to ensure the safety of children in the future.

270.

Mr J Kelly: I am concerned that this amendment will make it more difficult to provide homes for children in care. Is there a notion of undesirability of having a children's home in a particular location?

271.

The Chairperson: No, that is not the issue. People are seeking clarification in relation to children. If each of us were asked for a definition, our answers might not all be different, but they would probably not be exactly the same - that is my point.

272.

Mr Gallagher: I agree with the Chairman, and I reassure Mr Kelly that we do not want to create difficulties for anybody.

273.

Many of the difficulties in the case which I cited could have been avoided if there had been accurate information on the definition of the facility which they intended to put in place - we must bear in mind that children suffered as a result of this. Many felt that the term was very loose and they expected the description to be much clearer.

274.

Mr J Kelly: I am sorry, but I am not familiar with the details of that case. Perhaps you would remind us of them.

275.

Mr Gallagher: A private provider applied to run a children's home. The application described it as a residential home. However, local politicians and people only realised that the application was for a children's residential home when everything was in place.

276.

Mr J Kelly: Are you saying that if you had known beforehand that it was to be a children's residential home you would have objected?

277.

Mr Gallagher: No. I do not know what people would have done. However, everybody is entitled to accurate information, particularly as this turned out to be a contentious case. It is in everyone's interest to have as much clear information as possible in advance.

278.

Mr J Kelly: I agree. However, if we are going to make endless amendments to make it very difficult to get planning permission for a residential home for children, we will make matters worse, not better.

279.

Mr Gallagher: That is a matter for the planners. We can only deal with the matter before us: the description of different types of home; whether they be for adults or for children. Everybody, the Committee and the public, should know exactly what is involved.

280.

The Chairperson: It is a question of defining terms.

281.

Mr McFarland: The confusion arises from the term "residential care homes", as the social workers and all the other witnesses who have appeared before us have spoken about residential care homes. That phrase has come to mean for us, rightly or wrongly, children's homes. If we are discussing a children's home, we should refer to it as such; while the term "residential care home" would describe a facility for adults. At the moment, there is confusion. Someone in the Department should clarify the terms.

282.

The Chairperson: I would hate to be sitting an 'A' level in clause 21. It is no one's fault that subsections 3 and 4 are so complicated - I will not read them out. That is by no means a criticism of anyone: your colleagues have been most helpful. Perhaps we might leave clauses 20 and 21 for now.

283.

Ms McWilliams: I ask the officials for clarification. How long must a child be in a place before that place is described as a children's home? I have in mind children who go to summer camps or who are placed in a residential home for more than a night or two and perhaps for up to a month. They obviously have a clearly defined function. I understand how difficult that might be; it is, as you said, a scoping problem.

284.

We return to the issue of child abuse. We should like to think that, when children go to these camps or are placed in care, they will be safe; that those who might abuse them will be caught by the Pre-Employment Consultancy Service.

285.

We thought that the Pre-Employment Consultancy Service (PECS) would help to catch them, but we now know that it is not the case. Was there a particular reason, other than the fact that you thought of, why you could not bring everyone in? I am concerned that you are leaving some places out, particularly when you say that they are not children's homes, but are used primarily for social activities. A residence can be for cultural recreation or leisure, but often, children are also taken away for educational purposes. Many of these places set themselves up for children, taking them week in, week out. In Northern Ireland, they do outdoor adventure playgrounds or play facilities, but they deal only with children. Should these places not be covered by the Bill?

286.

Mr Martin: Is your point that, where social workers provide care for children, and have access to them, sections of the Bill should cover it?

287.

Ms McWilliams: All year round.

288.

Mr Martin: I agree. Where social workers pose a risk or a threat to children, we are keen to ensure they are covered within the legislation. The difficulty you identify for us is that this could potentially exclude them.

289.

Ms McWilliams: It does, and we need an amendment.

290.

Mr Martin: I should be happy to take it away for consideration.

291.

Ms McWilliams: I should be delighted if you would. We must clear up that point, for there is presently a great loophole whereby children are not covered by the Bill, meaning those working with them need not register - happy days!

292.

Mr Martin: They will not be covered by structures other than the PECS, therefore missing out on additional safeguards which the Social Care Council will provide.

293.

Ms McWilliams: I welcome that.

294.

Mr Martin: Your point is extremely valid, and we shall be keen to act upon it.

295.

The Chairperson: We return to clauses 20 and 21. Might we ask you to come back in the future to discuss those? We have clause 22 to cover now.

296.

Ms Ramsey: The Department is currently exploring with officials from the Northern Ireland Office how best the provisions on juvenile justice might be implied. I know we asked this question previously and the Department answered it. However, on a point of information, might we get an update of where we are? This will be raised in the Assembly over the next couple of weeks, and these meetings could still be happening.

297.

Mr J Kelly: On what particular areas of clauses 20 and 21 are we asking questions?

298.

The Chairperson: The entirety of the two clauses and what we have been discussing here - clarification of the names for a start.

299.

Ms McWilliams: I do not agree. I do not think we can ask that of the Department. We must simply take this and, one hopes, get it clarified elsewhere, something Mr Martin has agreed to do. We can only ask Mr Martin and his colleagues to address clause 20(e), the loophole, which currently exists in the provision of facilities for children all year round in a residential setting other than a boarding school. There is a permanent turnover of children, but there are always homes for them. Therefore, workers in those settings are equal to others in residential environments and would-be social care workers. That is all we should ask them to do at this stage.

300.

The Chairperson: Yes. I am happy enough to do that, but is our colleague happy with Clause 21?

301.

Mr Gallagher: What happens in relation to the definition?

302.

The Chairperson: Sorry, Mr Gallagher, we were speaking to Ms Ramsey.

303.

Ms Ramsey: I want an update on where we are in the juvenile justice.

304.

Mr Martin: Secure accommodation and criminal justice are not devolved matters and remain the responsibility of the Northern Ireland Office. We have had two formal discussions with them, and we await a response from them on what they intend to do with regard to members of their workforce. The Department wishes to include them, for in essence they provide social care to vulnerable children and young people. Having said that, we do recognise that the decision does not fall to us but to Northern Ireland Office, and we await a formal response from them on that issue.

305.

Mr Gallagher: Will the Department come back to us on the definitions?

306.

The Chairperson: No. It will come back to us on paragraph 20(3)(e).

307.

Mr J Kelly: I believe the definition is there in subsection 20(1) that "an establishment is a children's home if it provides care and accommodation for children."

308.

Mr Gallagher: What are we to do about planning applications coming in from a different Department using a different definition? That is not satisfactory.

309.

The Chairperson: That is the point I was addressing. I should appreciate your advice, Mr Martin, as to how we should deal with that. I understand that it is not your direct responsibility.

310.

Mr Martin: We should be happy to raise the planning definition with the appropriate Department.

311.

The Chairperson: That would be a great help. Thank you very much.

312.

Mr MacRory: The flaw seems to be in the planning legislation rather than in the Bill, which quite specifically defines nursing homes, residential care homes and children's homes. The chief draftsman has been over this in some detail. I take the point that it can be a bit confusing. The problem is that the definitions of nursing home and residential care home are derived from another piece of legislation. It is not obvious from the Bill alone.

313.

The Chairperson: We should write to the Department of the Environment so that it uses the right terminology in legislation.

314.

Mr J Kelly: We ought not to give the impression that it is socially undesirable to have a care home for children situated in any particular location.

315.

Ms Ramsey: I always assumed that a residential care home was a children's home.

316.

Mr McFarland: One of the first duties of the council should be to instruct all social workers to stop calling them residential care homes and call them children's homes.

317.

The Chairperson: Clause 20 is accepted, apart from paragraph 3(e), about which we shall be writing to the Department of the Environment. Clause 21 is also accepted.

318.

Ms Ramsey: I have a problem with clause 22, and I do not know if the officials can answer this. We have once again come across the problem of juvenile justice. The Bill says that "child" means a person under the age of 18, but those in secure accommodation are excluded. The Bill appears to refer to all children under 18 years of age.

319.

The Chairperson: In juvenile justice, the definition of a child is a person under 17 years of age.

320.

Ms Ramsey: This definition of "child"means a person under 18 years of age does not fall under the remit of the Department.

321.

The Chairperson: We need clarification on that.

322.

Ms McWilliams: It is of importance that we hear from the Northern Ireland Office before we pass this Bill, for this is a vital point. We have heard from the Department, and most of us have been arguing for this, so we should like to hear the arguments against. I assume they do not have them, and we simply do not know. It is difficult to draw the line between criminal justice issues and our departmental responsibilities. At the end of the day, we have a clear statutory duty, and that is the most important point of all.

323.

Mr Martin: It would be wrong to give the impression that the Northern Ireland Office is opposed to this. It is important to make clear that it has not yet made a decision. I have not picked up on any opposition to it in discussions I have had with it.

324.

Ms McWilliams: Nor have we.

325.

The Chairperson: Thank you very much, Mr Martin. Was there anything else you wish to raise under clause 22?

326.

Mr McFarland: Is clause 22 parked until we receive clarification from the Northern Ireland Office?

327.

The Chairperson: That is right, until the justice people let us have the information on it.

328.

Mr Gallagher: What is the definition of "school" in the Education and Libraries (Northern Ireland) Order 1986?

329.

Mr Martin: That is an unfair question.

330.

Mr Gallagher: Things have changed in the intervening period. Does it match the current circumstances?

331.

Ms Ramsey: Perhaps I might add to a point someone else made - this might impact on what Mr Gallagher is asking about schools. We are frightened that, in the community sector, children are coming out of mainstream education and going into community type programmes. Would they fall under that remit? If so, that would be another loophole.

332.

Mr Gallagher: There are, after school, all kinds of things -

333.

The Chairperson: That is right, Ms Ramsey. That is another huge problem. Is everyone happy with that? That is the end of the first section. Mr Martin, Ms McMahon, Ms McAuley and Mr MacRory, you have all been most helpful. I am sorry it has taken so long to go through all that. We really do appreciate all your help.

Mr A Hamilton
Mr S Popplestone
Mr R MacRory

334.

The Chairperson: You are very welcome to the Committee session. We shall begin with clause 23 of the Bill, dealing with payment for hospital treatment of traffic casualties, which we discussed earlier.

335.

Mr Hamilton: We are pleased to be here to facilitate the Department's scrutiny of this part of the Bill.

336.

Part II of the Bill provides for the introduction of a simplified procedure to recover the cost of treating road accident casualties from insurance companies. It also extends the current charge to embrace outpatient treatment. Previously, we could recover costs only for inpatient treatment. It also increases the amounts recoverable to reflect the costs incurred by the service more accurately. The provisions do not affect the amount of compensation paid to casualties.

337.

The Road Traffic (Northern Ireland) Order 1981 presently empowers hospitals to levy charges on insurance companies when a road accident casualty makes a successful claim for compensation. The revised proposals are intended to address a number of weaknesses in the current system. First, there is sometimes uncertainty about whether a patient will claim compensation, since hospital staff are reluctant to ask for details of the accident from patients who are in pain or traumatised, leading to difficulty in identifying the insurer in question. The maximum amount which can be recovered does not always reflect the full cost of treatment.

338.

The new system is designed to help hospitals by removing the administrative burden from them. It also helps insurers by adopting a simple approach to which they are used under the benefit recovery scheme, and the provisions centralise the recovery arrangements by placing the responsibility to recover charges on the Department for Social Development instead of the hospitals. The Social Security Agency's Compensation Recovery Unit (CRU) will recover the charges on behalf of hospitals.

339.

The new scheme is very similar to that operated by the CRU for benefit recovery for over 10 years. In line with that scheme, the compensators - the insurance companies - will be required to apply to the CRU for a certificate of health services charges for any case in which a road accident casualty claiming compensation has received hospital treatment. To help simplify the system further and save hospitals from having to calculate charges for each case, we are introducing a tariff for charges. We propose a standard fee of £354 for patients treated in accident and emergency departments or outpatient clinics, no matter how many times they attend. A daily rate of £435 will apply for patients admitted to hospital, subject to a maximum of £10,000 for each case.

340.

Another feature we are introducing is the power to recover charges in cases where a driver who caused an accident is uninsured or untraceable and the casualty receives compensation from the Motor Insurers' Bureau. These provisions would bring the Motor Insurers' Bureau into the scheme, and we would recover the charges from it.

341.

We believe that the provisions will lead to increased income of about £2·5 million per year, with a potential total of £3 million. Presently we collect about £500,000. This money will be paid directly to health and social services trusts.

342.

From the individual's point of view, it is estimated that the greater recovery could lead to increases in premiums of between £6 and £9. Ultimately, it is a matter for insurance companies whether they pass those on or absorb them.

343.

Ms Ramsey: Some people are concerned about insurance premiums. In the Minister for Health, Social Services and Public Safety's speech on the Bill last week, she said the premium should increase by £6 or £9, and that such a rise would not be significant. What happens to people who are not insured?

344.

Mr Hamilton: The Motor Insurers' Bureau must meet those costs. I presume that would be financed by the insurance companies themselves. If the legislation is passed, moneys will be recovered from the Motor Insurers' Bureau only for accidents which occur after the date of its enactment. For other cases, the revised tariffs would apply to accidents which have occurred since 2 July 1997. Prior to that date, the previous tariff of £3,000 still applies.

345.

Ms Ramsey: You said that the money would go directly to the hospital providing the service. Now, however, you say that the money would go directly to the trust.

346.

Mr Hamilton: They are the same. The hospital trust is the legal entity.

347.

Mr McFarland: If I had injured someone in a traffic accident in December 1997, would the hospital which treated the injured person be expected, three years later, to start the ball rolling with my insurance company? How do you track down a person involved in an incident three years ago?

348.

Mr Popplestone: It depends when the compensation is settled. If compensation is settled after enactment comes into force, regardless of when the accident occurs, the insurance company will notify the CRU and ask for an insurance certificate.

349.

Mr McFarland: Does that apply equally before 1997?

350.

Mr Popplestone: Yes. The deed of settlement determines what legislation applies. It is done retrospectively, since so many accidents take years to be settled.

351.

Mr McFarland: So the date does not make any difference. If an accident which occurred in December 1997 after the Chancellor's announcement has already been settled, it is finished with.

352.

Rev Robert Coulter: How does the compensation apply if a person has an accident before the passing of the legislation, but is still in hospital afterwards?

353.

Mr Hamilton: If someone had an accident today and were in hospital for some months, the insurance company would ask for a certificate from the CRU, and the legislation would apply to that case as it applies to all outstanding cases. The new maximum applies after 2 July 1997. The trigger date of 2 July 1997 reflects the date when similar legislation was announced in Great Britain. It is accepted that, if the accident happened before 1997, the previous maximum applies, and hospitals cannot recover the cost of outpatients.

354.

The Chairperson: Is everyone happy with clause 23? - [Members indicated assent].

355.

Clause 24 provides for applications for certificates of health services charges. The present scheme empowers hospitals to collect charges. The new Bill transfers collection to the Department for Social Development, which will issue certificates for the charges due. In practice, the CRU, part of the Social Security Agency, will undertake this work on behalf of the Department. That seems straightforward.

356.

Mr McFarland: The Department for Social Development is responsible, even though this is a health issue.

357.

Mr Popplestone: They act as agents for the Department of Health, Social Services and Public Safety in this. They are appointed to do so.

358.

Mr McFarland: Is that because we do not have a collection agency?

359.

Mr Popplestone: The CRU has been running the benefit recovery scheme on which this is based. It works very well in Great Britain, and we expect the same in Northern Ireland.

360.

The Chairperson: Is everyone happy with clause 24? - [Members indicated assent].

361.

Clause 25 introduces powers enabling charges to be calculated according to a tariff. It is intended that the tariff be as simple as possible.

362.

Mr Hamilton: There are two reasons why we are applying tariffs which pertain in Great Britain. First, our costs are similar, and, secondly, the whole system, including these tariffs, has been agreed in Great Britain. We might have more difficulty with the local insurance industry if we used different tariffs.

363.

Mr McFarland: The local industry is getting away quite lightly, given the higher insurance charges in Northern Ireland.

364.

Mr Hamilton: The key issue is the cost of treatment in Northern Ireland, which is similar to that in Great Britain. For each accident, insurance companies will pay the same average amount.

365.

The Chairperson: Is everyone happy with clause 25? - [Members indicated assent].

366.

Clause 26 covers payment of health services charges. The memorandum which came with the legislation had no comment on this. "Settlement date" means the date on which the compensation payment is paid.

367.

Ms Ramsey: I shall be somewhat cynical. Is this intended to allow the Department to cut money to hospitals, depending on the accident rate?

368.

Mr Hamilton: That is a very good question. Some commissioners, who are obviously interested in maximising the purchasing power of their resources, would maintain they should get a reduction in the cost of their service level agreement. I should insist that the hospitals delivering the care benefit from the revised arrangements, something which is certainly happening in England.

369.

The Chairperson: Is everyone happy with clause 26? - [Members indicated assent].

370.

Clause 27 covers the recovery of health services charges. This enables the Department for Social Development to issue a certificate of health services charges where a claim for compensation has been settled, but no application for a certificate has been made, as required by clause 24. It also enables the Department for Social Development to recover health services charges which are overdue. This follows on from clause 26.

371.

Is everyone happy with clause 27? - [Members indicated assent].

372.

We now turn to Clause 28, which deals with the review of certificates. There is no procedure for review under the present health services charges scheme. Clause 28 provides for the internal review of any certificate, which can be initiated by either the CRU or, on application, by the compensator. Is everyone happy with that? - [Members indicated assent].

373.

Clause 29 is entitled "Appeals against a certificate". The grounds of appeal set out closely follow those in the benefit recovery scheme. It is intended that procedures to be set out in the regulations will also be modelled on that scheme's rules. As in the benefit recovery scheme, a right of appeal will not arise until such time as the liability to repay health services charges has been discharged. Is everyone happy with that?

374.

Mr Gallagher: It is somewhat odd that an appeal can be made only when the Department has been paid. If the certificate is issued and somebody is unhappy with it, he must wait until payment is made to the Department before making an appeal. If I were involved in an accident and were still in hospital or convalescing - possibly quite ill - this would upset me. I am not entirely confident that any Department would deal with such a matter speedily.

375.

The Chairperson: It would affect one's convalescence.

376.

Mr Gallagher: It seems unfair in those circumstances.

377.

Mr Hamilton: It is important to say that this will not necessarily involve the individual. It is an issue between the insurance company and the collection agency. To avoid grey areas and uncertainty, a sharp definition is sometimes needed in relation to when an appeal is - or is not - being made. Our position is that the Department should be paid. Thereafter, if people wish to appeal, there are provisions to do so. There are also provisions for insurance companies to be reimbursed if the appeal determines that too much has been paid.

378.

Mr Gallagher: Everything else goes on, however. The payment goes out, the insurance premium goes up, and the bill for that will come in quickly. One could get depressed about such a situation.

379.

The Chairperson: That is when you go onto Prozac. - [Laughter]

380.

Mr Gallagher: Who pays for that?

381.

Mr McFarland: Does this apply merely to hospital treatment? What happens in a traffic accident where a dedicated paramedic ambulance with a defibrillator is rushed out, and an air ambulance hurries the victim to the Royal Victoria Hospital before he pegs out? None of those costs is recoverable under this clause, for only the actual hospital cost is covered.

382.

Mr Hamilton: That is right.

383.

The Chairperson: Is everyone happy with Clause 29? - [Members indicated assent].

384.

The Chairperson: We move now to Clause 30, which covers appeal tribunals. This clause allows for the same tribunals which hear appeals in compensation recovery cases to hear health services charges appeals. Compensation recovery cases are heard by an appeal tribunal set up as part of the unified appeal tribunal procedure introduced by the Social Security (Northern Ireland) Order 1998.

385.

Mr McFarland: Why have costs such as primary care for traffic accidents not been included?

386.

Mr Popplestone: We are not introducing new charges, merely simplifying an existing Government scheme. That is the purpose of the legislation, rather than trying -

387.

Mr Hamilton: It is copied directly from what is happening in Great Britain.

388.

The Chairperson: General practitioners are not normally involved directly in road traffic accidents. If somebody is knocked down and seriously injured, one does not wait until a GP or the community nurse arrives. One would make other moves.

389.

Mr McFarland: Paramedics will be involved. Full paramedic ambulances cost money, as we have found out.

390.

Mr Hamilton: There is an argument, for example, for people who are unfortunate enough to suffer brain injury and need to be looked after for the rest of their lives. Those costs are obviously substantial - many thousands of pounds per year - but this legislation does not provide for the recovery of those social and nursing care costs.

391.

The Chairperson: There is no doubt that paramedics are extremely important. Are you happy with clause 30? - [Members indicated assent].

392.

Clause 31 will allow for an appeal to be made to the high court on a point of law. That is straightforward enough. Is everyone happy with that? - [Members indicated assent].

393.

We move on to clause 32, also covering reviews and appeals.

394.

This section applies in any case in which a fresh certificate is issued as a result of review under section 28 or an appeal.

395.

Do you have any comment on that?

396.

Mr Hamilton: If the insurance companies have been asked to pay too much, there is provision for them to be paid back. If they have not paid enough, there is provision for an additional charge to be levied.

397.

The Chairperson: Thank you very much indeed. Is everyone happy with clause 32? - [Members indicated assent].

398.

Clause 33 covers the provision of information.

399.

Clause 33 gives powers under regulations for gathering information relevant to the collection of health services charges. In order for the new system of collection to work information will have to be exchanged by the various parties involved in the chain of events from accident to payment of compensation.

400.

It sounds fairly complex, but it can be understood.

401.

Ms Ramsey: Will this be an argument between insurance companies, not necessarily affecting the person involved in the accident?

402.

Mr Popplestone: The whole concept of the scheme is to keep the victim out of the proceedings completely.

403.

Ms Ramsey: The whole concept of the scheme should be free health care for all, but we shall not get into that.

404.

The Chairperson: Apart from the breathalyser. It is a fair point, and it is taken. Is everyone happy with clause 33? - [Members indicated assent].

405.

Clause 34 allows information obtained for the health services charges scheme to be used for the purposes of the benefit recovery scheme and vice versa.

406.

That is straightforward enough.

407.

Mr Hamilton: It means that we must collect the information only once.

408.

The Chairperson: Is everyone happy with that? - [Members indicated assent].

409.

Clause 35 covers the payment of health services charges to hospitals.

410.

For at least 30 years the receipts generated under Road Traffic legislation have always been recovered by the hospital providing the care. Clause 35 confirms that hospitals will continue to be the direct recipients of the money recovered. It is intended that regulations will provide for the money collected by CRU to be passed directly to the relevant hospitals.

411.

Is everyone happy with that? - [Members indicated assent].

412.

We move to clause 36, which covers regulations governing payments into court. Does anyone have anything to say on clause 36?

413.

Mr Hamilton: Compensation payments can be lump sums, or monthly or annual amounts. Where that is the case, the regulations will provide for details as to when the charge is payable to the hospitals.

414.

The Chairperson: Is everyone happy with that?

415.

Mr Hamilton: When the detailed regulations are produced, the Committee will have a chance to go through them.

416.

The Chairperson: Thank you. We shall move on to clause 37, which covers the interpretation of this part. There was no comment on that in the explanatory memorandum. Would anyone like to comment on it?

417.

Mr Hamilton: I think it is straightforward.

418.

The Chairperson: There are a great number of definitions.

419.

Mr McFarland: The definition of "owner" has the meaning given in article 2(2) of the Road Traffic (Northern Ireland) Order 1995. Many insurance policies cover an owner or an authorised driver. If one were an authorised driver, rather than the owner of a car, how would that affect things?

420.

Ms Ramsey: That is a good point.

421.

The Chairperson: Is that driver's insurance?

422.

Mr McFarland: Let us say, for example, that I have a car and am named on its insurance policy. My wife and daughter are added as authorised drivers. If they are driving at the time of the accident, are they covered?

423.

The Chairperson: They are covered. It is the same insurance.

424.

Ms Ramsey: No, not necessarily.

425.

Mr McFarland: It defines "owner" here. It says "owner" and is referring to "owner".

426.

Ms Ramsey: My insurance allows me to drive another car which I do not necessarily own. Who is liable?

427.

Rev Robert Coulter: The person who owns the car and who has taken out the insurance policy.

428.

Ms Ramsey: But that says "owner".

429.

Mr Hamilton: The liability will rest with the insurance company making the compensation. I take the point, and perhaps we shall look at it again. I want to make sure that there is no loophole, and that the authorised driver's insurance company cannot wriggle out of its liability if one is the authorised driver rather than the owner of the vehicle.

430.

Mr McFarland: Suppose a company has insurance which applies to the 25 drivers who drive its trucks. Would the clause cover this situation?

431.

The Chairperson: The owner is not defined in this legislation. It just says that it has the same meaning as that given in article 2(2) of the Road Traffic (Northern Ireland) Order 1995.

432.

Mr McFarland: I presume that says the legal owner of the vehicle.

433.

Rev Robert Coulter: Another situation can arise where a person has insurance covering him to drive someone else's car. That case is much more complex.

434.

Mr McFarland: The insurance companies normally try to share the liability between them in that case, splitting the difference.

435.

Mr Hamilton: The legislation certainly provides for recovery from two insurance companies if they admit the liability jointly.

436.

The Chairperson: Are we happy with clause 37?

437.

Mr McFarland: We could park it pending clarification.

438.

The Chairperson: Will we park it temporarily?

439.

Ms Ramsey: Is that the owner parking it?

440.

Rev Robert Coulter: What happens in the case of an accident which takes place during a motorcycle or car race? If I had an accident in a car race and had to go to hospital, would it make any difference if I were on a track and not a road?

441.

The Chairperson: I presume you would have special insurance.

442.

Mr Popplestone: That is a totally separate issue, since it is not a road. I presume that if one has a race on a public road, it is subject to a road closure order. It is no longer a road within the definition of this legislation.

443.

Mr McFarland: Can one recover costs if one is injured and taken to hospital badly hurt?

444.

The Chairperson: The taxpayers would have something to say about that. We are parking that temporarily.

445.

Let us move on to clause 38, which covers consequential amendments.

446.

Mr Hamilton: That clause repeals article 99 of the Road Traffic (Northern Ireland) Order 1981, under which the current system operates. This legislation will commence then.

447.

The Chairperson: Are our Colleagues happy with that? - [Members indicated assent].

448.

I thank Mr Hamilton, Mr Popplestone and Mr MacRory, who have been very helpful.

Witnesses:
Mr D Baker )
Miss S Barfoot ) Department of Health, Social
Mr B Gibson ) Services and Public Safety
Mrs B Major )

449.

The Chairperson: I welcome you to the Committee.

450.

Mr Baker: I will take the Bill Clause by Clause, and say a little about the intent and purpose behind each one, and you can, if you wish, ask more detailed questions about each Clause as we go.

451.

Mr Baker: The first Clause within my bailiwick is Clause 39. This short Clause will remove from the statute book the legislation in the Health and Personal Social Services (Northern Ireland) Order 1991 that set up the GP fundholding scheme. Therefore when the Clause comes into operation that scheme will end.

452.

It will be brought into operation by a commencement order - a piece of subordinate legislation. That allows the Minister discretion over the timing of the ending of the scheme. Also, when the Clause is introduced, another piece of subordinate legislation will be necessary to deal with some of the technical issues surrounding the winding up of the scheme in an orderly manner. That subordinate legislation, to be made under Clause 58 of this Bill, will provide for the final audit and closure of fundholders' accounts, the transfer of any assets and liabilities remaining to health and social services boards, and the treatment of any savings which may remain in funds at the end of the scheme.

453.

As you know, the Minister intends, as soon as possible, to publish proposals for new arrangements to take effect in primary care after the scheme ends. That is all I will say about that Clause at this stage.

454.

The Chairperson: Thank you, Mr Baker. The date for the ending of the fundholding scheme has not yet been declared, is that correct?

455.

Mr Baker: That is correct. Ultimately that is down to the Assembly, because the Assembly will make this legislation. The Minister has not announced her preferred date for ending the GP fundholding scheme, but even if she did it would still be down to the Assembly to pass the legislation.

456.

The Chairperson: I appreciate it is a massive subject, but the public is concerned about what is going to replace the present scheme. I do not want a big discussion about it now because we need to read the paper when it comes out. However, I presume that something proper will be in place before, or shortly after, the date is decided for ending fundholding.

457.

Mr Baker: I do not want to pre-empt anything the Minister might announce, and I cannot discuss what might be in our proposals. However, the Minister intends what she proposes to have in place following the end of fundholding to be clear, so that when the scheme ends people will have something to move towards and move into. No vacuum would therefore be created, and there would be clarity for all who work in primary care.

458.

Ms Ramsey: Roughly, how many months does this involve - from the ending of GP fundholding to the possible start of primary care? Are we looking at years?

459.

Mr Baker: I should not think so. This is purely speculation, and I have to put that caveat on it. If fundholding were to cease at the end of this financial year, we would hope to have agreed the new arrangements and we could start putting those in place from 1 April 2001, so that the transition could happen during the next financial year. However, fundholding would hopefully not end right away.

460.

The Chairperson: You could not possibly have primary care and re-organisation in place by 1 April 2001.

461.

Ms Ramsey: Are we looking at GP fundholding continuing for another year?

462.

Mr Baker: The Minister would need to make that decision. I cannot pre-empt that.

463.

The Chairperson: The key factor is that something full and proper has to replace it when it ends, because the two are inextricably linked.

464.

Mr Berry: What notice would the fundholding practices be given about the cessation of GP fundholding?

465.

Mr Baker: The Minister announced during a debate on the second stage of the Bill that when she publishes her paper on new arrangements in primary care she will also announce her intentions on a timetable for ending fundholding. Therefore, if fundholding were to end at the close of this financial year, that period of notice would be given. At the same time, the Department would be obliged to issue guidance to the wider health and social services, so that boards, trusts, GP fundholders and their staff would know how to manage an orderly wind-down of the scheme.

466.

Mr Berry: How would the service ensure that fundholding practice staff with primary care expertise are not lost due to the delay in introducing new arrangements?

467.

Mr Baker: As the member says, a number of staff are employed in fundholding. One of the positive by-products of fundholding has been an improvement in management capacity in primary care, which is very important. The ending of fundholding does threaten the role of fundholding staff. A number of things may happen to them. Many of the staff who are currently engaged in fundholding will already have been practice managers. When fundholding ends they will continue in that capacity. Therefore, they will remain within primary care. Our understanding from soundings that we have taken is that in anticipation of its end, some fundholding practices will try to retain those staff in their practice as administrative staff. Depending on what arrangements the Minister decides to put in place to replace fundholding, staff currently employed in fundholding and in management-arrangements in primary care may have opportunities to migrate to those new arrangements. We hope to inform any staff currently employed in fundholding of the opportunities that will exist in new arrangements.

468.

It is possible that there could be some redundancies amongst staff who are currently engaged in the administration of fundholding. We could not put a definite number on that, because it would depend on the arrangements within the individual fundholding practices.

469.

Mr J Kelly: I presume that a planned approach will be taken from the beginning, right through to the end of whatever will replace fundholding?

470.

Mr Baker: The Minister intends that whatever replaces fundholding will be clear before this scheme ends, so that people will have a clear plan to go by and know what the new arrangements are. Regarding a planned approach to winding down the scheme, I replied to an earlier question that the Department would have to issue detailed guidance on how all the logistical arrangements need to be tidied up, to facilitate the run down of the scheme.

471.

The Chairperson: I presume the paper is ready. When will we see it or when will it be published?

472.

Mr Baker: I cannot give you a date, - again that is in the Ministers gift. A lot of work has been done and the Minister is currently considering it.

473.

The Chairperson: It is coming soon?

474.

Mr Baker: It is coming very soon; I know that is the Ministers intention.

475.

The Chairperson: Within weeks, if not days?

476.

Mr Baker: It will be ready soon. The exact place and date of publication will be for the Minister to decide and I cannot pre-empt that.

477.

Mr Baker: Clause 40 amends an existing article in the Health and Personal Social Services (Northern Ireland) Order 1972. This Clause actually has a quite complex history, but the amended Clause will do a number of things. Firstly, it will clearly define the ability of the Department to determine the remuneration of family health services practitioners; GPs, general dental practitioners, pharmaceutical contractors and optometrist/opticians. You will see a reference at the beginning of the amended Clause to Part VI regarding services. That is because Part VI of that order deals with family health services, and throughout this Bill, when we are talking about Part VI services or practitioners, we are talking about the family health services. The legislation which is currently in place is unclear. Apparently the Department's right to determine the remuneration of family health services practitioners is implicit, rather than explicit. This new article will make it quite clear that the Department has the right to determine this remuneration.

478.

It also introduces, at paragraph two, the opportunity for the Department, should it ever wish to do so, to designate other persons, bodies, organisations or health and social services boards to act as determining authorities for the purpose of determining the remuneration of family health services practitioners. I must stress that there are no proposals at the moment, nor any plans on the horizon, to do that; it is a permissive power. We can only speculate on when we might use such a power.

479.

If, for example, in addition to the fees and remuneration which the Department sets out at a regional level, it was decided that it might be helpful if health and social services boards would also be able to determine fees for the remuneration of certain practitioners, to encourage the provision of services where there is a particular need for them, this article could be invoked. We could give the power to health and social services boards, or indeed any other body, to do that.

480.

If, for example, there was some radical change in the future regarding the overall health and social services structures and it was deemed that levels of remuneration should be established by more local bodies rather than the Department so that local circumstances could be better reflected, this Clause could be invoked to do that. I stress again that we are aware of no plans to invoke these powers.

481.

Mr Baker: Clause 41 is a completely new provision. It will insert a new article in the 1972 Order designed to enhance protection for patients and give the Department power to require family health services practitioners to have professional indemnity. The closest analogy is having third party insurance if you drive a car. If the patient is harmed they will have the safety net of the practitioner having professional indemnity insurance. The vast majority of practitioners already have such indemnity. The new article will allow the Department to require them to have such insurance, and, if they do not, they may not be included in a list maintained by a board, or they could be removed from that list. That is the intent of the Clause.

482.

The Chairperson: Do hospitals take care of insurance for all their staff, not just doctors and nurses?

483.

Mr Baker: Yes, because they are employees of the trust and the board tends to pick that up. These are independent contractors who must have their own insurance.

484.

Ms Ramsey: How much will the insurance cost?

485.

Mr Baker: The Chairman may know that better than I do. Insurance for a general practitioner may be in the region of £1,500.

486.

The Chairperson: At present, it is a lot more than that for full-time doctors.

487.

Mr Baker: Clause 42 is an amendment to existing provisions. It deals with local representative committees which is a generic term for a number of committees at board level that represent the interests of family health services practitioners. The Chairperson may know them as local medical committees or local dental committees.

488.

The Clause does four things. First, it rationalises the number of committees at a board level. Under present legislation we have five such committees - local medical, local dental, local pharmaceutical, local optical and an ophthalmic medical committee for general practitioners who also provide ophthalmic services. The legislation reduces the number to four. It gets rid of the ophthalmic medical committee, and those GPs, and there are only a few, would be represented by the local medical committee.

489.

Secondly, the Clause remedies a deficiency in the existing legislation which allows any doctor or dentist to be represented by the committees. The intent was that it would only be GPs and general dental practitioners and that is made explicit in the amended legislation.

490.

Thirdly, it allows deputy medical practitioners and deputy dental practitioners who are employed by a practice to have their interests represented by the committees. At present, there is no facility for their interests to be represented in dealings with health and social services boards.

491.

Fourthly, and perhaps more significantly, it allows a health and social services board, if requested by a committee, to impose a levy on family health services practitioners in its area to defray the administrative costs of that committee. The committees want that because they may have some administrative expenses and may find it difficult to sustain their activities. If the committee asks, the board can impose a levy. It would do that by making a small deduction in the remuneration that it pays to the family health services practitioners in its area, and pass that on to the local committee, be it a medical committee or whatever. The boards would not do that unilaterally to the practitioners. The committee would first have to ask the board to do it. It is implicit that it would have the approval of the practitioners in the area.

492.

Mr Baker: Clause 49 replaces the existing schedule 11 with a new Schedule set out in Schedule 2 of the Bill. It is a specific counter-fraud measure and is part of the Department's overall efforts to bear down on fraud. Schedule 11 deals with the workings of the tribunal, commonly known as the NHS Tribunal. It spells out, in some detail, how the tribunal operates, the sanctions it can impose on a practitioner, its membership, and so forth. The NHS Tribunal is the ultimate sanction which health and social services board can invoke against a family health services practitioner. The tribunal can disqualify a practitioner from the list maintained by a health and social services board in Northern Ireland, or elsewhere in the United Kingdom. Therefore, it is serious to be referred to a tribunal.

493.

This new Clause adds to the grounds whereby a practitioner can be referred to a tribunal. It introduces a new ground concerning fraud, which is meant to have a deterrent effect. This Clause provides that those practitioners who engage in fraud may be referred to the tribunal. Under existing legislation, there is only one ground for referral; where maintaining them on the list could be prejudicial to the efficiency of the services. That is very general, it covers a lot of things and, potentially, it could cover fraud. However it was decided important enough to have fraud up-front and explicit to act as a deterrent.

494.

Mr J Kelly: Is fraud simply in addition to what is already in existence?

495.

Mr Baker: That is correct.

496.

Mr Baker: Clause 55 replaces existing Schedule 10 with the new Schedule, set out in Schedule 3 of the Bill. This is fairly technical, and its purpose is to make explicit the sale of goodwill of a general medical practice. Under existing legislation, it is illegal to sell the goodwill of a practice. To define "goodwill," it is helpful to take the analogy of an ordinary shop. If you sell a shop, you will get an amount of money for the physical premises, and also an amount for the custom and the trade that goes with it. This is the so-called goodwill. If dealing with a general medical practice, the goodwill would be the patients and the practice list. We do not want to encourage a market for patients, where GP's sell each other patient lists. The existing legislation that defines the circumstances in which you can sell goodwill was not robust enough for a prosecution to be made. The new Schedule clearly specifies two broad circumstances in which goodwill is deemed to have been sold.

497.

The first is in the sale of the physical premises. If an amount is paid far and above the normal market value, that could be deemed goodwill. If any other financial, or valuable, consideration changes hands between medical practitioners - perhaps as a bribe, or if someone is employed by a practice at a rate far below the going rate for that job because they are on a promise of becoming a partner at some future date - that would be deemed as the sale of the goodwill of a general medical practice.

498.

Such circumstances are set out in some detail so that if a prosecution is deemed necessary, the legislation will be robust enough to make a case.

499.

Mr J Kelly: In what context do you see this free-for-all that requires this sort of legislation?

500.

Mr Baker: It is a preventative measure. I am not aware of a case like this ever having taken place in Northern Ireland. It is to deter any trade of goodwill taking place and to stop the development of a market where doctors sell patient lists to each other. Let us speculate, if a general practitioner owns premises and is retiring -

501.

Mr J Kelly: I had thought of Joe Hendron when I asked this.

502.

The Chairperson: Unlike Mr Kelly, I never owned any premises.

503.

Mr Baker: I would not like to impugn the integrity of doctors or general practitioners; this is pure speculation. Another example is where a general practitioner pays £300,000 although the premises are worth £200,000, simply because there is a list of 3,000 to 5,000 patients that goes with it. Patients are income and a general practitioner gets paid for the number of patients that he/she has and the services provided to them. That is the income and, therefore, you are really buying a patient list at the same time. The sale of patient lists has been deemed unlawful. That is one situation where it could arise.

504.

Another example is if Dr Hendron was a practice principal and I was his employee - I am sorry to use you as an example, Mr Chairman - with a salary of £20,000 a year compared to the going rate of £30,000 a year. He tells me not to worry about the £10,000 pay cut, because he is going to make me a partner on his retirement - that would be selling the practice's goodwill. The principal would be benefiting to the tune of the lower salary being paid to me. Those are some examples of a practice's goodwill being sold.

505.

The Chairperson: If I employed you, Mr Baker, I would be asking to seek that primary care paper.

506.

Mr Baker: I have no answer to that.

507.

The Chairperson: I can assure you that we will not offer any bribes.

508.

Ms Ramsey: Was that goodwill?

509.

Mr J Kelly: I was not really referring to you, Mr Chairman. I asked the question, because it concerns people in my own area who are approaching retirement. For example, if someone could not take the pressure of working in a medical centre, they could be relocated somewhere and given responsibility for fewer patients over the last years of their practice. I think that is fine, but I wonder if the legislation would interfere with it?

510.

Mr Baker: No, I do not think so.

Witnesses:
Mr G King ) General Register Office
Mr S Campbell ) General Register Office

511.

The Chairperson: Thank you, Mr King and Mr Campbell, for attending this session; you are very welcome. I understand that you are from the General Register Office, which is part of the Department of Finance and Personnel, and you will take us through clause 51 - "Provision of information as to births and deaths".

512.

Mr King: Thank you very much, Mr Chairman and Members. The General Register Office is responsible for the registration of births and deaths in Northern Ireland through the registrars of birth and death in each district council. Registrars have been forwarding information on deaths to the health boards since 1974 following an agreement between the Registrar General and the then Department of Health and Social Services. The information is used to update records, cancel appointments for home visits and for the retrieval of equipment. The General Register Office also passes information on births and deaths to the Department of Health, Social Services and Public Safety for purposes such as the study of epidemic diseases, preventative measures, medical research, et cetera. As well as that, registrars have been notifying the Central Services Agency of births and deaths, to allow them to maintain a central record of patients for health and personal social services purposes.

513.

This exchange of information has been very beneficial for the maintenance of patients' records by health and personal social services. However, there is a need for unambiguous legal authority to permit the exchange of information between the General Registrar Office, the Department and its agencies. Clause 51 would legally regulate the supply of registration data to the Department and its agencies for health purposes only. It is worth noting that this clause is similar to section 42 of the Health Act 1999, which applies to England and Wales.

514.

Mr J Kelly: Are there regulations to provide someone seeking a death certificate with rights of redress if there are difficulties in updating that certificate? I raise this because one of my constituents, whose wife died some months ago, is still awaiting a death certificate. This has happened because the coroner's office is waiting for the surgeon who performed the operation to contact them before they will issue the death certificate. This means that those involved are still unable to tidy up their affairs. Is there any provision for someone in that position to speed matters up?

515.

Mr King: The basic situation regarding registering a death is that if a doctor has been attending a person who then dies of natural causes, a death certificate can be issued immediately. Usually, that will take place within five days of the person's death. If a doctor has not been in attendance, he is required, under the Coroners Act (Northern Ireland) 1959, to refer the matter to the coroner who will then investigate the death. In those circumstances the time taken for the registrar to register the death will depend on the period of the coroner's investigation. In the interim, a coroner's certificate can be issued to enable the person to be buried and which may give information about the death.

516.

The Chairperson: A doctor can sign a death certificate as long as he has been consulting with the coroner's office and as long as the coroner agrees. Obviously, if there is a question mark over the cause of death, it is a little bit late trying to find out the cause of death once the person has been buried. Would that be correct?

517.

Mr King: Yes.

518.

Mr J Kelly: I appreciate that. However, this was the case of a person who was taken to hospital for an operation, had their operation, and died on the operating table or shortly afterwards. The inquiry into the death has taken five months. In the interim, no death certificate has been issued and the deceased person's obligations, such as the mortgage, cannot be resolved without it. In those circumstances, people have no redress.

519.

The Chairperson: That is a very difficult situation. When someone dies in hospital, the hospital would be required to issue the death certificate. There must be a query as to how the patient died.

520.

Mr J Kelly: I am concerned about the length of time it is taking to resolve the matter.

521.

Mr King: That would be a matter for the coroner. I understand that the coroner can issue an interim certificate, which can help in such circumstances.

522.

Ms Armitage: You said that the coroner may issue a death certificate for burial purposes. I have had a similar problem. If the cause of death is not quite clear, how can the coroner issue a death certificate? As you used the word "may", presumably there are occasions when he would not issue such a certificate.

523.

Mr King: It seems that in this case the cause of death cannot be clearly identified and a post mortem may take place. I really cannot speak for the coroner.

524.

Ms Armitage: I would like to see something more definite included in the clause on this issue.

525.

Mr J Kelly: The situation arises precisely because of what Ms Amitage is saying. Where a death occurs in circumstances that have not been explained to the relatives of the deceased; and when the inquiry is protracted and there are suspicions of some type of cover up between the surgeon and the coroner; and they are reluctant to issue a certificate, the family cannot resolve the circumstances of the death. Such situations go on and on. People come to Ms Armitage or myself for help. All we can do is ring the coroner's office or the forensic pathologists, and we end up going round in circles. There seems to be no way to force the issuing of a death certificate.

526.

The Chairperson: We would have to take that matter up with the coroner's office.

527.

Mr J Kelly: Could we not recommend that something be put into the legislation to ensure some kind of redress for people in those circumstances, for they are not unusual?

528.

Ms Armitage: It could take the form of a limit being put on the length of time a coroner can take.

529.

Ms Ramsey: I welcome this information as it is vital when we are talking about trusts and boards targeting resources. You mentioned that this will take place - or has been taking place - in each district council area. Are you proposing to continue that? I am on Lisburn Borough Council which falls within Down Lisburn Health and Social Services Trust. However, in the Assembly I represent the West Belfast constituency, which comes under North & West Belfast Health & Social Services Trust. Are you proposing to do it by district council area or trust area?

530.

Mr King: The information goes to the chief medical officer of each health and social services board.

531.

Ms Ramsey: We are all aware that there are pockets of deprivation in areas which would be deemed affluent. I am concerned about this information.

532.

Mr King: I will make one further point in relation to Mr Kelly's question. The coroner has no association with the General Register Office. Our job in the General Register Office is purely to record the facts. The coroner, in coming to his decision, does not consult the General Register Office. The information referred to in clause 51 is purely factual information, which is supplied to us.

533.

The Chairperson: We will have to take it up with the coroner's office.

534.

Ms Ramsey: You are saying that the information will go to the chief medical officer of every board. Will they give the information to the trusts?

535.

Mr King: We believe so.

536.

Ms Ramsey: The information will become trust/board information.

537.

The Chairperson: Is everybody happy with clause 51? - [Members indicated assent].

Witnesses:
Mr D Bingham )
Mr H Vance ) Department of Health, Social
Mr C Wallace ) Services and Public Safety Officials

538.

The Chairperson: We welcome Mr Bingham, Mr Vance and Mr Wallace. We will go through clauses 53, 56 and schedule 4.

539.

Mr Bingham: Clause 53 amends the Medical Act 1983, insofar as it extends to Northern Ireland, and will enable the Department of Health to make regulations in relation to the training of pre-registration house officers (PRHOs). These are doctors who are coming to the end of their basic medical training. The current regulations in Northern Ireland effectively preclude such doctors from spending part of the final 12-month training period in general medical practice. The provision in clause 53 would allow us to make regulations to introduce a valuable new training opportunity for PRHOs in the final year of their basic medical training. In particular, this would allow them to develop their awareness of primary care and the role of other health care workers. They would be attached to general practice. This opportunity is already available to their counterparts in England and Scotland.

540.

The Chairperson: It makes sense, given that as medical students they spend time in practices and community centres. It therefore seems odd that in their final pre-registration year, they do not spend any time in general practice. This amendment is long overdue. Would anyone like to comment on clause 53?

541.

Mr Gallagher: You speak about England, Scotland and Wales - some of them train in Dublin. Can pre-registration house officers train on both sides of the border?

542.

Mr Bingham: No, not at that level. That facility is available later in their medical career as specialist registrars. At that stage there is the potential for posts to be identified for that form of training. Clause 53 relates specifically to medical students entering their final year of medical education.

543.

The Chairperson: Is clause 53 agreed? - [Members indicated assent].

544.

Mr Bingham: Clause 56 and the associated schedule 4 of the Bill provide for the regulation of the pharmacy profession. In common with other health care professions, pharmacy has a regulatory body that has responsibility for setting education, training, registration and conduct standards. The legislation governing professional groups is generally on a United Kingdom basis but, for historic reasons, the pharmaceutical profession in Northern Ireland is governed by the Pharmaceutical Society of Northern Ireland. That was established under the Pharmacy (Northern Ireland) Order 1976.

545.

There has been a lot of debate concerning the regulation of health care professionals and there are significant changes starting to occur in the regulation process for many of those professions. Clause 56 will not make any change to the regulation of the pharmaceutical profession but it will streamline the process for making such changes to legislation should they be required. The clause will allow changes to be introduced by laying an Order before the Assembly. For instance, a change in legislation is required if the Pharmaceutical Society of Northern Ireland wishes to introduce a new standard or revise its current code. The new method will streamline that process.

546.

It will ensure that safeguards are built into the Bill so that an Order can only be dealt with as listed in paragraph 1 of schedule 4. Therefore, a number of safeguards are in place to ensure that the streamlining of legislation would not be abused.

547.

The Chairperson: Are clause 56 and schedule 4 agreed. - [Members indicated assent].

Witnesses:

Mr A Hamilton )
Ms D McNeilly ) Department of Health, Social
Mr N Jones ) Services and Public Safety

548.

Mr Hamilton: Clause 44(1) places further constraints on the income generation powers of Trusts, giving the Department more control over those activities. It is a safeguard measure. Income generation does not form a major part of Trust business. It focuses on raising income through catering charges, private pay beds, renting space for shops on hospital corridors, and so forth. It is not a major issue for the Trusts and the Department itself does not have concerns about them abusing their powers. It is being included in the Bill as a read-across of legislation from Great Britain. The Community Health Councils Association in Britain raised the matter, as the existing legislation as drafted was considered loose. Under the proposals of the draft Bill, income generation activities must not interfere with core functions, and moreover, the Department reserves the right to approve or otherwise what is being done.

549.

Rev Robert Coulter: Are there any limitations placed on the number of pay beds a Trust can have?

550.

Mr Hamilton: Limitations would be imposed by income generation potential, as there is not a big market for private healthcare in Northern Ireland. I am not aware if the Department has imposed any specific targets on the number of beds. If that is the case then I will certainly get back to the Committee in writing.

551.

Rev Robert Coulter: If there are no limitations, how do you decide when a Trust is overstretched?

552.

Mr Hamilton: Income generation must not interfere with the core function of Trusts - they are expected to deliver the service specified by their commissioners. If a Trust were not doing so, because it was raising income, the Boards would take a dim view and ensure through the normal monitoring processes that the Trust delivered the service being paid for.

553.

Mr McFarland: If a Trust is meeting its obligations and performing well - renting out or selling space for shops, and so forth - at what level would you step in to question it about income generation?

554.

Mr Hamilton: Provided that it does not interfere with the business for which it has been set up - to provide care to patients - the Department will not stand in the way of the Trust generating income. That income can be used to reduce the cost of the Trust's services and, therefore, help to maximise the level of care that can be provided by the Department's fixed budget.

555.

Mr McFarland: It comes back to the question of additionality. It affects everyone else in the block budget system. The moment you generate any cash that is not part of your allocation, the Department of Finance and Personnel say, "Thank you very much. We will have this back. We have given you an amount of money to do such and such a job. We want you to give back any extra money and bid for it centrally." No other Department seems to be able to generate extra money and be allowed to keep it. I cannot understand how the Department of Health, Social Services and Public Safety magically got the Department of Finance and Personnel to agree to leave any money that it generates with it.

556.

Mr Hamilton: We operate under the same financial regime as the NHS in Great Britain, and at one time Trusts were encouraged to generate income in order to maximise the level of care that they provided. Income generation was a bit of a buzzword about 10 years ago. The Department's budget is fixed and any additional income that can be generated by Trusts provides a way of expanding the purchasing power associated with that budget. However, the usual appropriations in aid approach that applies to Government Departments does not apply to Health and Social Services Trusts.

557.

Mr McFarland: My suspicion is that the Department doles out money to Boards, but it does not know what happens beyond that. Then the boards give it to the Trusts and the Trusts do as they wish with it - it is fascinating. We will now have a new Programme for Government that has measured outcomes attached to it, there will be measured outcomes for the allocated money and it strikes me that this will cause chaos for Trusts who generate all this money and cannot account for it under the system.

558.

Ms McNeilly: The Trusts are independent bodies in their own right, and the funds raised through income generation activities are outside the supply system as such. They are independently-run bodies, rather than Department-run, and the legislation and financial regime is completely different. They can hold on to any income they generate, over and above the allocation, whereas if the Department raises additional funds that is within the supply process.

559.

Mr McFarland: I am completely confused now.

560.

The Deputy Chairperson: I do not want to guillotine the discussion, but we will probably be talking to you about the budget next week. We have to keep in mind that we still have some clauses to get through. We have to decide now if we are satisfied that the clause is restrictive enough to have the Trusts deliver the level of service that is specified by the Commissioners.

561.

Mr Hamilton: The commissioners will ensure, through their monitoring processes, that the Trusts deliver the level of service for which they are being paid. The income generation aspect of a Trust business is a very marginal contribution, and not a big issue. This is very much a safeguard measure and it gives the Department the powers to control and approve those income generation measures pursued by Trusts.

562.

The Deputy Chairperson: We have to read this in the sense that we are satisfied with the limitations as specified.

563.

Mr McFarland: With the greatest respect, I thought we were investigating the income generating powers of Trusts here and the regulations of them. I thought that it would be fundamental to have an understanding of how all this works, otherwise we will end up thoroughly confused.

564.

My understanding is that the Department produces the money for Trusts to run. If you are saying that it does not do that and that Trusts generate their own funds, then I am amazed as to where all these funds are coming from.

565.

Ms McNeilly: The legislation makes provision for Trusts to generate income. That could be through charging nurses for their accommodation, as well as the other activities that Mr Hamilton has mentioned. For example, around £4 million was the figure raised from private patients, for 1999-2000 by all the Trusts, in the draft accounts that had been prepared at a summarised level. That compares to a total income of somewhere in the region of £1·5 billion. So, the income generated in proportionate terms is a very small amount.

566.

The legislation provides for the Trusts to be established as independent bodies. They are not like, for example, the Social Security Agency, which is part of a Government Department. We give the allocation to the Boards and they then use that allocation to commission services from Trusts. However, because Trusts are independent bodies they also have scope to generate income through the other activities.

567.

They have accommodation that they can charge the nurses for, and there are other activities like that. For example, if they are supplying sterile supplies within the system, then they can charge for those. This clause is allowing a Trust to do that while putting a control on it - a constraint.

568.

Mr McFarland: The point I am trying to make here is that, providing it does not interfere with the Trust's functions - the Trust is doing what it is supposed to do - it can provide whatever service it wishes to. In theory - and I appreciate that they do not - it can gain millions of pounds. If you were a very smart financier down at the Trust, you could have a great system going - providing it did not interfere with your statutory duty. Is that what we are saying?

569.

Ms McNeilly: The Department would have to monitor what the Trusts are doing. If it came to a problem level, then one would obviously have to go in and look at that.

570.

Mr McFarland: Although they are meeting their requirements, I am trying to tease out what level you would allow it to reach before saying - "Hang on a minute, we are going to object to them raising £3 million." The question then is whether they should be allowed to use that money themselves, or whether that has to come back into the Department.

571.

Ms McNeilly: The commissioners are monitoring activities that the Trusts are providing. They will have contract arrangements with the Trust to provide a service. If they see the Trust providing services outside this, which interfered with their services - for example, if it had implications on waiting lists - then the Board and the Department would not look too well on that.

572.

Mr McFarland: What if it does not interfere?

573.

Mr Hamilton: This is the point of the legislation. There are no controls under the current legislation for that and, theoretically, a Trust - if it were that way disposed - could potentially raise significant income. This clause would allow the Department to intervene - it states that the Department has the right to give consent. That means we can withhold our approval and stop the Trust. It is highly unlikely that it will be so engaged, but it covers the theoretical potential of the existing legislation.

574.

Mr McFarland: It is important for us to understand this. I did not know that Trusts could keep their own money. If you look at any other Budget at the moment you produce anything over your allocation, Finance and Personnel whip it back in - One is not even given time to look at it. I do not understand how all this freedom exists in the Department of Health, which no other Department seems to have.

575.

Ms Armitage: Just for clarification, if there is a surplus, presumably it is used in the Health Service anyway. I consider a Trust as being like a business, and I do not see the same problem as Mr McFarland - but maybe I have not looked at it closely enough. If the money raised remains within the Health Service and budget, it could be argued that the Trusts are helping towards the budget.

576.

Mr Hamilton: That is why Government policy, some years ago, was encouraging Trusts to maximise their income generation activities.

577.

Ms Armitage: That is how I see it, but maybe I am looking at it from a business point of view.

578.

Mr McFarland: That logic is absolutely correct. If I were a board financial manager, I would be down with my Trust regularly seeing what else could be done - sell off this, bring that in, start private enterprise. You could make a fortune with the sort of freedom I did not realise they had.

579.

Ms Armitage: If it were going elsewhere I would have a problem with that.

580.

Mr McFarland: If a Board or, indeed, a Trust were absolutely crisis ridden over cash I cannot understand why they are not all beavering away, involving the private sector to make lots of money to pour back into health, if they have that ability.

581.

Rev Robert Coulter: In clause 44(1), the new Article 10(8)(a) says

"to the extent that its exercise does not to any significant extent interfere with the performance by the HSS Trust of its functions or of its obligations under HSS contracts;"

Does this presuppose that there is a measure in which the exercise of power can interfere with the performance, functions and obligations of the Trust?

582.

Mr Hamilton: That wording reflects the existing wording of the current legislation and the effect of the revisions is really in 10(8)(b) where we were saying that it is "with the consent of the Department". We would not accept any interference with the performance of the Trust duties.

583.

Rev Robert Coulter: Why then is there the wording "any significant extent"?

584.

Mr Hamilton: It is probably to do with the fact that we do not want to be absolutely black and white on that issue. The spirit of it is that the functions of Trusts are to deliver care under the NHS. Any ancillary income generation activities should not interfere with the duties of the Trust.

585.

Ms Hanna: Last year money was allocated to the Trust for community care and was actually given to the acute hospitals. I wonder just where that fitted in here. I have never heard of the situation where Trusts have too much money and do not know what to do with it - it is usually the other way round. The Trust is allocated money, which is then taken from it for care in the community. I do not know where that fits in or if it even fits in to that.

586.

Mr Hamilton: That is funding for the core functions of the Trust for the delivery of care.

587.

Ms Hanna: The funding did not actually end up in the Trust.

588.

Mr Hamilton: There will be a variety of reasons for that which I should not go into now. The key issue is that income generation activities tend to be ancillary. We should not get too carried away about the managers having time to be entrepreneurial. They have corridor space in hospitals - why should it not be used for shops? They are providing meals to patients - why should they not charge for meals to staff and visitors? The tendency is that they are collecting income from ancillary activities.

589.

The Chairperson: We had some interesting issues raised there. Are we agreed that this clause allows the Department to intervene when Trusts are not meeting their obligations? - [Members indicated assent].

590.

We will move on to clause 45.

591.

Mr Hamilton: Clause 45 is really about simplifying the financial regime under which Trusts operate. This is complicated. When a Trust was set up, it was funded on the basis of public dividend capital and interest bearing debt - 50/50. Basically there was 50% equity and 50% loan. Trusts, in their prices, recover sufficient resources at the moment to pay back principal and interest, and make a dividend payment every year. What the legislation is doing under clauses 45 and 46, which need to be read together, is simply saying we will convert the interest bearing debt into equity, into public dividend capital, so it just becomes originating capital.

592.

Therefore, the Trusts neither has to pay back the principle sum, nor do they have to make interest payments. However, the Trusts will not benefit from this as they will still have to make a 6% rate of return. Their dividend requirement will be increased, resulting in the Trusts making one type of payment a year in terms of the dividend, rather than making a dividend payment and repaying the loan and interest. These requirements reflect the changes that have been introduced in Great Britain.

593.

Mr McFarland: Where the Trusts expected to pay back the equity?

594.

Mr Hamilton: They pay back the interest bearing debt including the interest charged on the debt. And they pay a dividend on the equity.

595.

Mr McFarland: But they own the rest of it?

596.

Mr Hamilton: Yes. They own the assets and pay a dividend on the equity invented by the Department and pay a dividend. The Department and the public purse are shareholders and, like any other business, the Trusts are expected to pay a dividend.

597.

Mr McFarland: It is now 100% equity. What happens if a Trust ceases to exist?

598.

Mr Hamilton: It will come back to the public purse; there would be no risk of it going elsewhere. As a public corporation, they are under public ownership.

599.

The Chairperson: Is clause 46 also part of this?

600.

Mr Hamilton: Clause 45 announces the change and clause 46 converts the interest bearing debt to public dividend capital.

601.

The Chairperson: Are we agreed on clauses 45 and 46? - [Members indicated assent].

602.

We will move on to clause 47

603.

Mr Hamilton: Clause 47 is concerned with taking greater powers over Trust activities, controlling their borrowing and determining where any surplus funds are invested. Trusts may borrow from the private sector, if it is better value for money or more efficient than borrowing from Government. In practice, Trusts have only borrowed from Government. This clause states that this Department will control what bodies Trusts can borrow from - in effect, only from Government.

604.

However, legislation does allow for borrowing from an external party, but that will only be used for private finance-type deals. If, for example, a Trust has to take over a private providers liabilities under a step-in arrangement to ensure continuity of service that in effect would be borrowing from a bank. Essentially all Trust borrowing will come under the authority of the Department and be approved by it.

605.

Ms Hanna: So, they can borrow from the private sector?

606.

Mr McFarland: They can, but they do not. To borrow from Government is cheaper than borrowing from the private sector.

607.

Ms Hanna: It would have to be better value if they got if from the private sector, but they could do?

608.

Mr Hamilton: Yes.

609.

Mr McFarland: Getting back to our entrepreneurial Trust with its smart little shops that produce their money. Clause 47 (5) allows the Trust to have power to invest money held by it in any investments. It cannot invest money that it holds from the Department, as an acting Trustee, but if it generates its own funds, it can invest them.

610.

Mr Hamilton: At present, a Trust can invest surplus funds. In its prices, a Trust will charge for interest and depreciation and will use that to pay its dividend payments. Moneys can accumulate in the course of the year and Trusts will invest it. They will be allowed to use the interest generated in this way . The financial regime allows them to do that at the moment. We are again taking control of this, so we can determine where those investments are made.

611.

In England, for example, they are restricting the ability of Trusts to invest in the private banking sector and have put a threshold of £50,000 on that sort of investment. They are insisting that the remainder be banked with the paymaster general funds, so it is banking with Government. Ultimately, we will have that power as well. The Department is actually taking greater control over the current investment powers of Trusts.

612.

You mentioned the funds a Trust holds as a Trustee. Those are not departmental funds, but charitable funds. For example, hospitals will be bequeathed money by people who have been treated there. The Department does not determine where a Trust invests those resources. It does not control them since, legally, those resources belong to the Trust.

613.

Mr McFarland: We said generated funds can go back into the Health Service but that is not necessarily the case, since they can go into the Trust's own investments - they may eventually. You mention regulations in England for these. Where are the regulations limiting where it banks its money - putting it back into paymaster or whatever?

614.

Ms McNeilly: Recent guidance circulars issued by the Department of Health stated that they were going to invoke a Direction. Part of this refers to an earlier clause that we discussed, which enables the Department to issue Directions on investments with the consent of the Department of Finance and Personnel.

615.

In England they have structured a tiered approach. They are going to invoke a Direction which will allow a Trust to invest up to £50,000 of their surplus fund in the commercial sector. Between £50,000 and £1 million, it will go into paymaster accounts, which do not earn any interest. If it is over £1 million, they can invest in the National Loans Fund, which will attract interest. Basically the Department of Health decided to take control of Trust surplus funds and pull them back to the centre. They have not actually put it in the legislation. Legislation just gives the Department the power to issue a Direction, which is what has been done in the NHS. They have come up with a Direction and will have to invoke it.

616.

Mr McFarland: If a Trust had £1 million, rather than put it into paymaster accounts and getting nothing, why would it not wish to avail of its use?

617.

Mr Hamilton: It is not allowed. This is part of the complexities of the Trust regime. Trusts are not allowed to deploy these surpluses. Through the establishment of its external finance limit, the Department controls how much of those resources it can apply in any one year. The remainder must be banked.

618.

Mr McFarland: So it can not use them for health?

619.

Mr Hamilton: No. If there is a surplus in one Trust, that surplus is used to finance the capital programme in another Trust. It is very complex. It is the financial regime we have inherited.

620.

Mr McFarland: Are there plans to legislate, in order to sort this out?

621.

Mr Hamilton: The directions give us the power to control where the money is invested, and ultimately we will be using that power. But we have not determined how or when that power will be applied yet.

622.

Ms McNeilly: The surplus funds referred to in this clause are actually the capital funds the Trusts are unable to spend. It does not actually refer to the income generation, where they have a shop. The surplus funds are the funds they cannot re-deploy in provision of health care because they are capital funds, provided through funding of depreciation. It is not the same funding, as the income they have generated from their shops or meals to staff.

623.

Mr McFarland: When people say that there is an enormous crisis in the NHS regarding money, they are wrong. What they are saying is there is a crisis regarding ready cash to spend on health. You could be sitting on zillions of pounds worth of capital tied up in paymaster that you cannot spend.

624.

Mr Hamilton: Whilst that money is sitting somewhere it would be covering public expenditure elsewhere.

625.

Mr McFarland: Not in health?

626.

Mr Hamilton: It would be in health, but in another Trust. Let me give you an example. Let us assume that Trust 1 generates £10 million in depreciation in the course of a year. As part of the external financing limit process and the approval of its capital programme we will say, that, of that £10 million we will allow you to spend £8 million. You are not allowed to spend the balance of £2 million and must invest it. We will then use that £2 million to give cover to a Trust which has generated only £6 million in depreciation. We can use that £2 million to increase its external financing limit to £8 million. So, the total resources available to the service are fully committed, but it is a very complex way of working.

627.

When the legislation was conceived in GB it was to address the point you have put your finger on. On the one hand the health service appears to be in crisis, on the other if you look at the balance sheets of Trusts you would see significant resources, apparently, available, and that belies the real situation.

628.

Ms Armitage: I find subsection 5 interesting. The Trusts have a duty to obtain value for money when they enter into a loan - it usually results in borrowing from the Department. Can you explain to me why any borrowing that takes place through the private sector must not be secured borrowing? What must not be secured? I would take from that paragraph that there is an onus not to seek private finance and just to borrow from the Department, which is probably more financially wise. But, if at some stage it became allowable could they borrow from the private sector?

629.

Mr Hamilton: Essentially what we are saying there, is that a Trust may not take out a mortgage or loan, which is charged against any assets. It cannot use its assets as security for a loan. That is to protect public sector assets. If a bank wants to lend money to a Trust it will not be able to secure its loan on the assets that the Trust owns. It is a greater risk to the bank.

630.

Ms Armitage: If at some stage it was cheaper to borrow from the private sector, is it allowed for in this clause? It appears that the Department is where you must get the money.

631.

Mr Hamilton: It is a sort of freedom available to Trusts that in practice does not exist because it will always be cheaper for a Trust to borrow money from Government.

632.

The Deputy Chiarperson: Is clause 47 agreed? - [Members indicated assent].

633.

We will move now to clause 48.

634.

Mr Hamilton: The purpose of clause 48 is to provide the introduction of fixed penalty charges, which can be imposed for evasion of health service charges.

635.

It also amends provisions associated with the criminal offence of evading charges in order to make more appropriate sanctions available to the Department. These measures are designed to help reduce the level of illegitimate claims for exemption from health services charges, particularly prescription charges. As such, they form part of the Department's anti-fraud strategy. Again, similar legislation has been implemented in England and Scotland.

636.

The proposed new provisions provide for the levying of a civil fixed penalty, rather like a speeding fine, where a person, or someone acting on his behalf, secures a reduction, remission or repayment of a health service charge to which he is not entitled. The penalty will be the smaller of £100 or five times the remission secured or the charge not paid. Where the civil penalty is not paid within the stipulated timescale, a further charge, amounting to a maximum of 50% of the original charge, is payable. The existing legislation provides for the recovery of the moneys in question, but does not include a fixed penalty.

637.

The new provisions also address the criminal offence of evasion with fraudulent intent. On summary conviction, the person is liable to a fine not exceeding level 4 on the standard scale - currently £2,500. These provisions constitute a more appropriate sanction than was previously the case under schedule 15 of the 1972 Order, which provided for six months' imprisonment or a fine of £400. A six-month prison sentence is rather harsh for non-payment of a prescription charge. The fixed penalty represents a significant and more appropriate deterrent, while the criminal charge will be available in an appropriate way against those who habitually and deliberately seek to defraud the service.

638.

The Deputy Chairperson: Are we agreed on clause 48? - [Members indicated assent].

Witnesses:
Mr J McGrath )
Mr H Farren ) Department of Health, Social
Ms M McNaughton ) Services and Public Safety

639.

The Deputy Chairperson: Welcome to this afternoon's meeting. We are going to discuss the Health and Social Services Bill. To begin, we must formally agree clause 55 from last week. Are we in agreement?

640.

We will proceed to clause 43.

641.

Clause 43 has its genesis in the original legislation that set up the internal market in Northern Ireland. That legislation set up trusts, and provides the conditions in which they can be set up and the assets they can take into their ownership. Trusts are established under article 10(1)(a) of the Health and Personal Social Services (NI) Order 1991. This article limited Health and Social Services Trusts to owning and managing assets which had previously been managed or provided by a "relevant body". Therefore, an estate that was owned by the Department at that stage - the Department owned all land within the Health Service - was managed on its behalf by Boards. A relevant body could have been a Board or the Central Services Agency or one of our special agencies. Therefore, at that time, the estate - which was owned by the Department and was needed by the trust to deliver its functions - was transferred into the legal ownership of the trust in question. That happened as trusts were set up and successfully came into being in the early 1990's.

642.

Article 10(1)(b) of the 1991 Order enables trusts to provide and manage hospitals or other establishments or facilities. Northern Ireland legislation reflects the legislation that exists in the rest of the United Kingdom. However, in recent years there has been doubt as to whether the legislation enables trusts to acquire new land or facilities that they have not inherited from a previous HPSS body or the Department. As an example - though there is no need for concern about this - the new Causeway Hospital is being built on a greenfield site on land which was not in our ownership in 1990. Doubt might arise as to whether the trust in question can manage facilities from the hospital.

643.

Solicitors have had doubts as to whether trusts could take ownership of land which they did not acquire from the Department. It has not been established that the legislation is weak, but the provision in clause 43 is to clarify that, and to enable the Department to confer, in a trust establishment order, a duty to provide goods and services at or from hospitals, establishments or other facilities.

644.

Therefore the aim of the clause, at the minute, is to remove any doubt as to whether trusts can take ownership of new assets and manage facilities or provide services from assets which they did not inherit at their institution.

645.

The Deputy Chairperson: Does anyone have any questions on clause 43?

646.

Ms Armitage: What happens if a trust ceases to exist as a trust?

647.

Mr McGrath: That is a wider issue. If a trust ceased to exist, it would be suppressed or dissolved. That happens when mergers have taken place, because one trust must be dissolved as part of a merger. That happened in the case of the Ulster Hospital Trust and the North Down and Ards Community Trust. The assets are passed to the organisation that will continue to deliver the business and provide the services.

648.

Ms Armitage: Is that provided for?

649.

Mr McGrath: That is already provided for in the Health and Personal Social Services (Northern Ireland) Order 1991. According to the wording of legislation in the 1990s, trusts were set up and they took into their ownership the assets from which they were providing services. These assets were owned by the Department and the legislation allowed for them to pass into trusts. There is some doubt as to whether legislation meant that the trusts could only own the assets inherited at that time. Therefore they would not be empowered to buy additional land now or build new facilities on it. There is some doubt as to whether they are empowered to do that, and this clause is to remove those grey areas. More fundamental issues about their ownership and their origins are in the 1991 Order.

650.

Ms Armitage: Has the new Causeway Hospital been built on land that the trust did not own? If so, could that happen again?

651.

Mr McGrath: There is some doubt about the recent legislation. It is not clear that it is deficient. The only way to test it would be to take a case to court. However, rather than doing that, we are inserting clause 43. There could be some doubt as to whether the Causeway Trust could run facilities from the land that is acquired to build a new hospital. Technically, the trust could buy the land but its establishment order does not allow it to run services from it.

652.

Some legal eagle has looked at that in a test case, perhaps in England in a trust ownership issue, and has said in the wording of legislation may not be entirely clear. This provision will amend that.

653.

Ms Ramsey: If the trust buys land and then sells it, where does the money go?

654.

Mr McGrath: When trusts are set up and take ownership from us, they have an originating capital debt - in a sense, a mortgage - so they need to pay that back to the Department. Where they dispose of an asset, they have to continue paying the back the mortgage. That is in their basic financial framework. At the minute they can sell and make significant funds, but that depends on the area. They then have to identify to the Department how they would wish to deploy those funds in relation to their capital plans. We have the provision to rein back some of those funds, if need be. In certain elements of the financial regime, particularly in capital, the Department can control how much the trusts can spend. We can actually limit the amount, even if technically they have the money in the bank. It is called the external financing limit. We can keep a very close eye on assets disposed and where those are redeployed. Where some trusts are sited geographically, for example, south and east Belfast, or north Down and Ards, could mean that if they had any surplus assets they would generate significant returns, whereas other areas of the Province would not. One issue that the Department will look at with the Minister is how we would equalise the gain to the service. The current approach is not necessarily the most equality- based approach.

655.

Ms Ramsey: I want to place on record that I oppose the trust, but I am not going to get into this now.

656.

Mr McFarland: Most Departments are subject to Treasury rules, which state that if something is sold off, the money reverts to the Treasury. The Northern Ireland Transport Holding Company is an example.

657.

Assets and car parks were sold, and £25 million was taken back from them. The Department is not even allowed to hold on to it. How can trusts sell capital assets, without the money going straight back into the Treasury?

658.

Mr McGrath: I am not familiar with the financial regime of other public bodies. I can only talk about trusts. Let us note that the assets are legally owned by the trusts, and not by the Department, so if trusts sell them they obviously get the proceeds. With regard to retaining them, the Department has conventions with the Department of Finance about what likely level of disposals we would have on an annual basis. That is taken into account in the public expenditure discussions. Because of the size of the Health Service estate, there is a continuing disposal of assets. At the minute, as far as the system operates, we have provision to retain a lot of our own proceeds, on the basis that we can identify how they are being deployed to meet a lot of the backlog of capital expenditure.

659.

Mr McFarland: Are you saying that the Department of Health, unlike virtually any other Department, is allowed to have additionality in its budget by selling assets and keeping the proceeds to spend, providing they are spent on health matters?

660.

In the public expenditure settlements agreed with our Department there is already an assumption made annually about the level of disposals. In a sense that is netted off, so if we are getting a capital provision there is an assumption that we are going to gain some money from disposal. Are the Trusts outside your control, in that they can sell things off if they wish to?

661.

Mr McGrath: There is a certain assumption made annually, that there will be a routine disposal figure of £2 million a year. The capital provision that we get, particularly from the Budget allocation, assumes that we are already making £2million ourselves, and that figure is to supplement it. Where the Health Service makes significant asset sales beyond that, we would be expected to demonstrate to the Department of Finance and Personnel that we can put the profit to good use, by setting it against some of the backlog and capital expenditure in equipment and health and safety, where funds are unobtainable through the public expenditure system.

662.

Mr McFarland: The Department of Regional Development has got hundreds of millions in underspend, and any money that they make is promptly taken from them, and they are not allowed to spend it. I am confused that the Health, Social Services and Public Safety can spend generated income in their own Department.

663.

Mr McGrath: I cannot speak for other Departments. I am not sure that it differs dramatically, as I have responsibility for capital expenditure, but it goes nowhere near what we actually need in terms of fire code work, and health and safety. I am sure that some of the Members are familiar with those issues, and I would not like there to be a feeling that assets are piling up and not being deployed for their proper purpose.

664.

The Chairperson: If Members agree to clause 43, we will move onto clause 50.

665.

Mr McGrath: Clause 50 relates to the disclosure of information by the Commissioner of Complaints. The current Commissioner for Complaints Order 1996 makes provision for the Commissioner to disclose information he obtains for the purpose of an investigation. Again, the aim of this clause involves strengthening and interpreting the legislation. The current provision in the 1996 Order could be subject to very narrow interpretation as to the circumstances in which the Commissioner can disclose information, and to whom we aim to strengthen the powers of the Commissioner so that he may disclose information and put it beyond doubt. The current legislation gives examples of the people to whom the Commissioner could disclose information, and it is possible that that could be interpreted as a definitive list. The proposed amendment to the 1996 Order under clause 50 makes it clear that where the Commissioner has information to the effect that any person is likely to constitute a threat to the health or safety of another person, then he or she may disclose that information to whomever he or she considers appropriate in the interests of health and safety of that other person. The amendment, therefore, deletes the list of examples in the 1996 order, and leaves it to the Commissioner to decide who should receive the information. The amendment also requires the Commissioner to inform both the person who provided the information, and the person who the information is about, that he has disclosed the information and to whom he has disclosed it.

666.

Again, it is the intent of the 1996 Order to enable the Commissioner to disclose information which may relate to the health or safety of the other person, and to ensure that he is free to disclose to whomever he judges fit for protection and does not limit the circumstances surrounding that.

667.

The Deputy Chairperson: Members, do you have any questions?

668.

Mr McFarland: In reference to Paragraph (1C)(a), I would appreciate clarification as to the difference between (a) and (b). To quote:

"where he knows the identity of the person first mentioned in paragraph (1B),"

Is that the person from whom the information originated? It goes on:

"inform that person that he has disclosed the information and of the identity of any person to whom he has disclosed it;"

So he tells the person from whom he received the information that he has disclosed it and to whom it has been disclosed. Is that a correct interpretation?

669.

Ms McNaughton: The person to whom the information refers is the person mentioned in Paragraph (1B). If he receives information about a particular person from another person, he tells both the person to whom the information refers and the person who supplied the information that he has disclosed that information to another, whether that is a professional body or whoever.

670.

Mr McFarland: Shall we talk about person A, B and C? Person A is the one from whom the information was received. Person B is the one to whom the information was given. So in Paragraph (1C)(a) where he knows the identity of the person first mentioned in the Paragraph, is that person A or B?

671.

Ms McNaughton: The person first mentioned in Paragraph (1B) is actually Person C.

672.

Mr McFarland: So where he knows the identity of C he informs C that he has disclosed the information?

673.

Ms McNaughton: Yes that is the case.

674.

Mr McFarland: Why are you telling C that you are giving him information?

675.

Mr McGrath: Person A is the person whom we think may constitute a threat. Person B is the person from whom the Commissioner receives some information and Person C is the person to whom the Commissioner updates the information.

676.

Mr McFarland: So A is the threat, B is the person from whom the information is received and C is the person to whom the information has gone. You see, if I cannot understand the Paragraphs, the chances of a patient or anyone else reading the Bill and understanding the matter are fairly limited. We need to clarify the English. I just want to be clear in my own mind what you are talking about. Therefore A is the person with the threat, B is the person the information has come from and C is the person to whom the information is given. Is that right?

677.

Mr McGrath: Yes, that is correct.

678.

"Where he knows the identity of the person first mentioned in Paragraph (1B)"

Who does that refer to?

679.

Ms McNaughton: That is the threat, that is person A.

680.

Mr McFarland: Therefore, if he knows of A, he tells A that he has disclosed the information and to whom the information has gone, is that right?

681.

Ms McNaughton: That is right.

682.

Mr McFarland: That is person C. So he tells person A that he has disclosed the information and that it has gone to person C. Paragraph (1C)(b):

"inform the person from whom the information was obtained."

Does that refer to person A?

683.

Ms McNaughton: No, that is person B, who is the source.

684.

Mr McFarland: Therefore he tells person B that he has disclosed the information. Is that right?

685.

Ms McNaughton: Yes that is right.

686.

Ms Ramsey: He does not know who made the allegation.

687.

Mr McFarland: So he informs person A that he has disclosed the information and he has gone to person C, but A is not told whom the information has come from?

688.

Ms McNaughton: Yes. The Commissioner has to tell person A that he has told other people about the information, but there is no provision for him to say who disclosed the information.

689.

Mr McGrath: If the Commissioner received information about a clinician, he might pass it on to a professional body, telling the "threat" individual that he had done so. He would not necessarily say that he had received the information from someone else. That is why this is not entirely balanced. The difficulty lies in there being no complete exchange of information, and there is a reason for that. If the Commissioner judges the information sufficiently grave to necessitate passing on, he does not want to advertise matters by saying he had passed something concerning a person to their professional body, having got the information from someone else. One can understand why one would not do so in those circumstances.

690.

Mr McFarland: Have we checked how person A's human rights are affected by the fact that person B is passing on information which may or may not be substantiated?

691.

Mr McGrath: We are making provision to give the Commissioner the freedom to do this. It is a power he can use if he sees fit given the information available. There is no diktat to the effect that he must do so in every circumstance; this is merely a legal empowerment of discretion. The overall view is that this is justified under human rights legislation on the grounds of the safety of individuals to whom this might be a threat.

692.

Mr McFarland: There is no requirement to say whence the information came or what value it has - or is that up to the Commissioner to decide?

693.

Mr McGrath: That is up to the Commissioner, who, under the Commissioner for Complaints (Northern Ireland) Order 1996, already has powers to disclose information, so one assumes that he would make judgements about reliability.

694.

Mr McFarland: Does he have the power to investigate this information before he passes it on?

695.

Mr McGrath: He will have uncovered this information through investigation. I recognise the points you are making. If you wish to examine the specific issue of person A's human rights, we can do some work on that. However, one assumes that the Commissioner will carry out the investigations. He has powers to pass information on, but we must clarify the circumstances and ensure they are not limited. The point on human rights could apply to the fundamental powers in the Commissioner for Complaints (Northern Ireland) Order 1996.

696.

The Chairperson: Would you be happy if the Department took another look at possible human rights implications?

697.

Mr McFarland: Yes. Do you think the wording might need to be clarified?

698.

Ms Armitage: In clause 50, the new paragraph (1B) says:

"the Commissioner may disclose that information to any person to whom he thinks it should be disclosed in the interests of the health and safety of that other person."

699.

Is there a duty or responsibility to disclose, or is it merely his decision? Is the word "may" acceptable? It strikes me that, if he has that information, it should perhaps be passed on in the interests of health and safety. However, it appears from this clause that the decision rests with the Commissioner. Is that right?

700.

Mr McGrath: Yes. I can understand the point you make in the context of the earlier part, which speaks of information about a likely threat. I can see how one might expect more rigorous wording.

701.

Ms Armitage: I should have thought there would be a duty or responsibility rather than the question mark left by the word "may".

702.

Mr McGrath: The discussion might become a little circular, for the sentence says "may disclose that information to any person to whom he thinks it should be disclosed".

703.

Ms Armitage: That leaves responsibility with the Commissioner.

704.

Mr McGrath: Indeed. Altering it to "must disclose" would not change matters. One would then have "must disclose it to any person to whom he thinks it should be disclosed", again leaving the decision with the Commissioner.

705.

Ms Armitage: I am nit picking, Mr Deputy Chairman, and I do not want to. I just wanted to raise that issue with you to see if you understood me.

706.

Mr McGrath: I understand. However, if that is removed, one is saying that if information is disclosed about any person likely to constitute a threat, then the commissioner must disclose the information. It starts with a judgement by the commissioner on the degree of danger or safety. We will look at it again.

707.

Ms Armitage: I wonder what other Members think about it?

708.

Mr McGrath: We will look at it again.

709.

Ms Armitage: That is fair enough.

710.

Rev Robert Coulter: How does this clause fit in with data protection legislation?

711.

Mr McGrath: The 1996 Order gives the Commissioner the power to disclose information that he obtains during the course of an investigation. This clarifies the circumstances in which he might do so. The fundamental power to disclose information is in the 1996 Order, and that is deemed to be consistent with the data protection legislation. This new provision does not empower him to make disclosure; it sets out the circumstances in which he might do it.

712.

The Chairperson: A number of points have been raised, and I think it would be better to leave this clause aside until the final round-up. Are Members happy to park this clause for the moment and return to it in the final document? - [Members indicated assent].

713.

The Deputy Chairperson: We turn now to clause 52.

714.

Mr McGrath: Clause 52 deals with the liability of officers of Health and Social Services Councils. Under article 97(1) of the Health and Personal Social Services (Northern Ireland) Order 1972, officers of boards, trusts, the Central Services Agency and any special agency set up by the Department are protected from personal liability when they act reasonably in carrying out their duties. When any officer of those bodies acts outside the scope of their employment they are not legally entitled to protection. However, any of those bodies may indemnify the individual against the whole, or part of any damages and costs incurred, if it is judged that the person honestly believed that they were acting within the scope of their employment. That is the present situation.

715.

While Health and Social Services Councils' staff are technically Health and Social Services Boards' employees, they exercise the functions of the Health and Social Services Councils. Legal action was taken several years ago against a Health and Social Services Council and its chief officer. That highlighted the fact that Health and Social Services Councils' staff are not afforded the same protection with regard to personal liability as officers in other Health and Personal Social Services' organisations are under the 1972 Order. The Department provided the funds to indemnify when that case was settled out of court. In a sense, a lacuna was identified. Health and Social Services Councils' staff do not have the same personal liability protection as all other officers in boards, trusts and agencies. This clause will correct that, and give those employees the same protection as other Health and Personal Social Services' staff. Therefore any officer will not be personally liable for his actions when he acts in good faith and in pursuit of his duties.

716.

The Deputy Chairperson: That tidies up a gap in the arrangements for indemnities. Are Members happy with it? - [Members indicated assent].

717.

The Deputy Chairperson: We turn now to clause 54.

718.

Mr McGrath: Clause 54 is about public access to meetings of bodies.

719.

The Department and the Minister are committed to ensuring greater access to information about health and personal social services, and to making it easier for the public to be involved in making decisions about care. A Code of Practice on Openness was issued in 1996 for health and personal social services to give people greater access to information on services, costs, standards, et cetera.

720.

Clause 54 is about allowing public access to meetings of health and personal social services bodies in order to further develop transparency. At present there is no statutory requirement for health and social services bodies to hold board meetings in public. Following the 1996 code of practice it became the convention for Health and Social Services Boards to hold board meetings in public, but there is no statutory requirement to do so.

721.

In 1997 the then Minister wrote to the Trusts' Chairmen and asked them to ensure that all future board meetings were held in public. Again, there was no statutory requirement for them to do so. At present there is no requirement for the Central Services Agency or the health and personal social services special agencies - for example, the Health Promotion Agency, the Regional Medical Physics Agency and the Northern Ireland Blood Transfusion Service (Special Agency) - to hold their meetings in public. Clause 54 requires all board meetings of the bodies named to be open to the public. The technical way to do this is to apply the provisions for admission to meetings of district councils in Northern Ireland contained in the Local Government Act (Northern Ireland) 1972 across the board.

722.

These provisions allow scope for elements of meetings to be closed to the public in certain circumstances; when confidential or staffing matters are being discussed, for example. The Local Government Act (Northern Ireland) 1972 also deals with making copies of agenda and documents available to the public and the press.

723.

Clause 54 makes it a statutory requirement for boards and trusts to hold their meetings in public, and extends that requirement to the Central Services Agency and health and personal social services special agencies.

724.

The Deputy Chairperson: Are health and social services councils included, or are their meetings already open to the public?

725.

Mr McGrath: I think they are open. I am not sure.

726.

Ms Armitage: I think they are. I used to be on one.

727.

Mr McGrath: This may be a lacuna.

728.

The Deputy Chairperson: It just struck me that they were excluded from the previous clause. Are there any questions?

729.

Mr McGrath: I think they do hold their meetings in public, but to make it a requirement - [Interruption]

730.

The Deputy Chairperson: You can check that out.

731.

Mr Berry: Are health and social services councils invited to meetings of the boards and trusts?

732.

Mr McGrath: As a matter of convention they are invited to, and they do attend Board meetings. This is to provide public access, and to allow documents to be made available under the Local Government Act (Northern Ireland) 1972. The problem with the Local Government Act (Northern Ireland) 1972 is that it does not mention health and social services councils. It talks about access for the press and the public. The Health and Social Services Councils are not mentioned specifically because they did not exist in those days.

733.

Mr Berry: Are these meetings be held throughout Northern Ireland or in one specific location?

734.

Mr McGrath: It does not specify where. The convention is that it varies. From my personal knowledge, I know that some trusts move their meetings around if they cover a large geographical patch. The Royal Group of Hospitals & Dental Hospital Health & Social Services Trusts provides regional services and I know it has held meetings in Carrickfergus, Derry and Enniskillen.

735.

Mr Berry: Would this one move around on a regional basis too?

736.

Mr McGrath: No. The Royal Group of Hospitals & Dental Hospital Health & Social Services Trusts moves meetings around because it covers the entire region - they do not want to just meet in Belfast. The majority of trusts tend to hold meetings in their headquarters or in a public venue. The Eastern Health and Social Services Board holds its meetings in its own headquarters.

737.

We do not want to start specifying locations without knowing the geographical layout. Some cannot have their meetings on their own premises - they do not have a room big enough - and use public premises. I am not sure that we want to be specify particular buildings.

738.

Mr McFarland: The logic of all this is we open our meetings. It is worrying that if you are a reluctant trust or board, you could conceivably have your meeting at a location which is difficult for the public to get to. They could hold it at an awkward time, and in a small room, where only the key people are able to get in, with no room for the public. If you are going to open these meetings you should also supply some guidance. If the purpose is to get the public in to them, then really it should be at a time, place and size suitable for the public. Otherwise, you could find a devious agency - not that there are any - which might choose to attempt to exclude the public from interfering. It is my understanding that a number of organisations here have not taken kindly to what they consider to be interference with their privacy; their ability to discuss things amongst colleagues. How are we going to prevent the introduction of additional caveats which obstruct the spirit of openness?

739.

Mr McGrath: Subject to the legislation taking effect, we will want to issue detailed guidance to bodies about holding public meetings. We would reflect in that the spirit and the detail you have given us, and even make points about not necessarily holding meetings in the same place. It depends on the circumstances. If it is a wide geographical area there is a case for suggesting moving meetings about. In a narrow urban area the public might find it helpful if it is always in the same place; they could get used to it. We would want to reflect that in detailed guidance and would want to police that.

740.

Mr Berry: The Bill also includes provision for public notice of meetings and press coverage. Would that be at a local level? How do they intend to include provision for public notice of meetings - would it be in surgeries? How would that actually be put in place? Is press coverage local or regional? How would they advertise it? My opinion is that, for far too long, these meetings have been behind closed doors and the general public has not been involved. It is important that the general public knows exactly what is going on and where these meetings are taking place so that they can attend and give their views. To provide a better service for all the people of Northern Ireland, they must be made aware of these meetings and allowed to attend.

741.

Mr McGrath: We are requiring these bodies to hold their meetings in public by statute. At present all trusts do and they place notices in the local press; that is already standard practice. In the guidance that flows from this, we will specify that they give adequate public notice of all meetings. I know from personal experience that they all give public notice in local papers. The difficulty is that this is not always picked up and sometimes is not actually the best notice. You will find it four pages from the end of the 'Telegraph', usually on the page for vesting orders, or whatever, and it may not actually be obvious. Some nights you could find four Trust board meetings all bunched together. It is adequate notice, a week or two in advance, but you just might not reach the people you want to come along. In the guidance we will require that they do it and we will follow this up. I have to be honest and say sometimes that is not enough - one needs to go out on the highways and byways.

742.

Rev Robert Coulter: Will you clarify whether press coverage includes electronic media or the Net?

743.

Mr Farren: No, it does not allow for transmission of the actual meeting. It allows the press to have a record of the meeting, but not to actually transmit it, either in picture or sound - just the same as district council meetings.

744.

Rev Robert Coulter: Is that not discriminatory?

745.

Mr Farren: It is applying the same provisions to these bodies as apply to district councils.

746.

Mr Berry: Would there be provision for members of the public to put questions and comments to the board when a meeting like this would take place, instead of them just sitting on the sidelines?

747.

Mr McGrath: All bodies will have their standing orders and people can ask for speaking rights. There is a well-established practice for that.

748.

Mr Berry: Would an ordinary individual be aware of that when they go into a meeting?

749.

Mr McGrath: If an individual noticed there was a public meeting and went along for the first time, it is unlikely that standing orders would allow him to speak. That might sound a bit bureaucratic, but I suspect it is not much different from district council meetings. There are standing order arrangements now. A lot of parties interested in the health service - staff interests for example - understand standing orders so they are tuned in enough to ask for speaking rights on issues. The man or woman on the street would not know that. They would almost have to do a loop, come along to a meeting and know they would have to come again. There is probably scope at the moment to allow for some questions to be asked at the end of meetings and you could find - I do not know enough in detail - some Chairmen or Trust boards are willing to be flexible depending on the circumstances.

750.

Mr Berry: Is there provision in this clause for that to take place?

751.

Mr McGrath: No, this does not set down detailed standing orders under which each body would operate. They adopt their own standing orders; most of them are fairly typical. We would have difficulty prescribing that people could come in and automatically raise an issue; you have got to structure meetings in some way. When you get difficult issues you could have a degree of filibustering and you would never actually get an item finished.

752.

Mr Berry: I appreciate that, but there still should be some provision for the general public.

753.

Mr McGrath: I have no difficulty with that. We could perhaps look at the issue of making the service more open for individuals as opposed to those who understand how the system operates, because I know the Minister is committed to that. I agree entirely with the spirit of that. Perhaps boards and trusts should find some way of facilitating that.

754.

Mr Berry: There should be more openness.

755.

The Chairperson: The best thing to do is park this issue and look at what you come up with for the final version and then agree to it in the light of that. Are you happy enough with that, Mr Berry?

756.

Mr Berry: As long as we get clarification on this.

757.

Mr McFarland: Just to confirm, we are working on the district council system here, but you have undertaken to have a look at what else?

758.

Mr McGrath: This creates a statutory requirement by using the provisions of the Local Government Act (NI) 1972 as grounding legislation. We will be issuing guidance to all bodies on how they put this into effect, so we will pick up on the issues you have raised. We will do this by saying that they go beyond the letter of what we are requiring and reflect the spirit of it, because it is very difficult to show this in an enabling bit of legislation.

759.

Mr Farren: The other aspect is that the procedures of these meetings are detailed in regulations made under the 1991 Order. As a result, it requires the trust to draw up its standing orders to deal with things like that. The standing orders determine whether the Chairman can set them aside to allow questions from the public.

760.

Mr McFarland: I am not sure we should interfere with this going through as it is, it seems to be fairly sensible as long as -

761.

Mr Berry: We still need to get clarification on the openness of it.

762.

Mr McGrath: If this proceeds and we produce detailed guidance, we will be happy to share that with the Committee and to discuss the nuts and bolts of it. I do not think that this issue is affected by clauses in the Order; what actually matters is how we put it into place. Perhaps we should examine the regulations and standing orders again to pick up these points.

763.

Ms Armitage: At council level, if that situation arises we just suspend standing orders. Presumably that is what could happen.

764.

Mr McGrath: And has happened. So you are just asking for Chairmen of bodies to be flexible and open when that occurs.

765.

Ms Armitage: Presumably, they will be quite happy to suspend standing orders in order to allow someone to speak, if the aim is to be open. I assume that the suspension of standing orders will cover this particular issue.

766.

The Deputy Chairperson: The Committee has to come to a final mind for the 6 December. If the Committee agrees, we will leave this point until we get the final document. Does everybody agree? - [Members indicated assent].

767.

Mr McGrath: Clause 44(2) relates to the Department's powers to direct HSS Trusts. Functions of trusts are set out in the establishment orders issued by the Department. Under the present legislation, the Department's power to direct trusts - with regard to their functions - are more restricted than the ones to direct HSS Boards. It owes its origins to when trusts were set up as part of the internal market. The then Government's view was that trusts should have a degree of independence within the Health and Personal Social Services, and some degree of autonomy.

768.

The Department's powers of direction relate to specific areas of a trust's functions. Those areas include entering into contracts with other HSS bodies; undertaking and commissioning research; providing training and associated functions; exercising their functions jointly with another individual or body; providing pay beds and income generation.

769.

The Department may also direct a trust in respect of such matters as the qualifications, experience and appointment of its staff; prohibiting and restricting the disposal of assets, compliance with guidance given to boards and implementing merit awards to medical staff.

770.

Over the years, these powers turned out to be less rigorous than originally intended, and certainly not of equal strength to the powers of direction that the Department has with boards. The provision in clause 44(2) is to widen the Department's power to direct trusts, and to make it equal to the power it has with boards. Examples of how the new power can be used include the institution of new pay arrangements for senior staff in the trusts, which has been a sensitive issue. This will give the Department the scope to impose a new pay system on HSS trusts. It is to bring the powers of direction of both trusts and boards to the same level. That said, there are powers that might be reserved for in extremis situations. There are few formal directions issued to any HPSS bodies. But this will enable the Department to have stronger power in the event of an in extremis situation, to make effective what the Minister decides.

771.

Mr P Berry: I appreciate the intention in relation to the chief executives' pay. It is good to have a certain amount of power over that. However, though it might not be a big issue to some, I am a little concerned that the Department might have too much power over these people. It has been known in the past that Trusts and Boards were brought in and told to keep quiet and to paint a better picture about the Health Service. I am afraid that the Department is given too much power. That is my concern; I do not know what other members think.

772.

Mr McGrath: This power will be given effect by a formal legal direction. That is what we are talking about. It is not a "called in and spoken to". It is a direction from the Department ordering a trust to do X or Y and therefore it would be a matter of public record. It may be far more explicit. They are rarely used. I can not remember the last time we issued a direction. Some years ago, there was one issued to the Southern Board, about a difficulty in accepting a contract for contracting out sport services. It is rarely used, but in extreme situations where the Minister of the Department needs to tackle some issue, the power is there.

773.

We have the power for Boards. It is now a matter of bringing it onto a par for Trusts to reflect consistency across the service.

774.

The Deputy Chairperson: Are all Members in agreement on clause 44(2)? - [Members indicated assent].

Witnesses:
Mr C Taylor ) Health and Social
Mr R MacRory ) Services Officials

775.

Mr MacRory: Well we are down to the last five clauses, 57 to 61. Clause 57 makes provision for subordinate legislation and directions to be made under the Bill. There are four subsections. Subsection (1) provides for the necessary Assembly control over subordinate legislation to be made under the Bill. Most of that will be in the form of regulations or orders made by the Department or the Minister, who are both rulemaking authorities for the purpose. Most regulations or orders will be subject to negative resolution in the Assembly; they will also of course be subject to the normal consideration by this Committee before the Assembly stage.

776.

Subsection (2) provides that the negative resolution procedure does not apply in a few cases. An order under clause 56, which you will remember relates to the regulation of chemists, is subject to affirmative resolution - that provision is actually laid down in Schedule 4 to the Bill. It would therefore be laid in draft form and be subject to debate in the Assembly. The reason for that is because schedule 4 contains power to amend other primary legislation. The Assembly, in due course, may consider their more active role in the affirmative resolution process to be more appropriate.

777.

The subsection provides that making certain restricted provisions under section 58 - you will see that it relates to "the transfer of any property, rights or liabilities" - and a commencement order under section 61 (2) would not be subject to any formal consideration in the Assembly.

778.

The main use of section 58 will be to make provision for the winding up of GP fundholding, particularly the transfer of assets, rights and liabilities of fundholders.

779.

Subsection (3) provides a power to include in regulations or orders provisions which are necessary to reflect the intentions behind the Bill. Including a power of this sort is standard and would most often be used to include transitional or consequential provisions in commencement orders. It might not be needed for regulations or orders under the Bill but is there as a safeguard.

780.

Subsection (4) is another technicality. It attracts the provisions of section 17 (2) of the Interpretation Act (Northern Ireland) 1954 to the making of directions. That section provides that any power to make a statutory instrument automatically includes power to amend it subsequently. The power to make directions would not include the power to amend them unless section 17 is specifically attracted. This is because directions do not come within the definition of statutory instrument. An example of a direction-giving power is clause 1(3), which gives the Department power to give directions to the Social Care Council.

781.

The Chairperson: Are there any other questions? Are we agreed? - [Members indicated assent].

782.

Mr MacRory: Clause 58 gives the Department or the Minister power to make an order containing any supplemental, incidental or consequential provisions needed to fulfil the intentions of the Bill. As I mentioned earlier, the most likely use of this power would be to make arrangements for the disposal of assets and other provisions following the winding up of GP fundholding. This power cannot be used for anything not strictly related to, or required for, the full and proper implementation of the Bill, as passed by the Assembly, so it cannot be used for any devious purpose.

783.

The Chairperson: Do the members agree clause 58? - [Members indicated assent].

784.

Mr MacRory: Clause 59 says that the principal order means the Health and Personal Social Services (Northern Ireland) Order 1972. It goes on to say that the words and expressions used have the same meaning as in the main 1972 Order. This ensures consistency of meaning across the range of health and personal social services legislation, including any subordinate legislation which may be made under this Bill.

785.

The Chairperson: Do Members agree? - [Members indicated assent].

786.

Mr MacRory: Clause 60 provides for amendments and repeals. The need for the majority of those amendments and repeals in the Bill stems from the repeal of the law relating to GP fundholding, the introduction of a new Schedule 11 to the 1972 Order, and the changes relating to the establishment and financial structures of trusts. The amendments and repeals are set out in Schedule 5. There is nothing peculiar about that. They are simply amendments and repeals consequential upon the passing of the Bill.

787.

The Chairperson: Do members agree? - [Members indicated assent].

788.

Mr MacRory: Clause 61 provides for the Bill to be brought into operation by commencement orders. This is standard practice. Unless all of the Bill is to commence on a known date, it is normal to bring in parts of it by commencement orders. A commencement order could apply to the whole Bill, or to different parts of it at different times. It is standard.

789.

The Chairperson: Are we all agreed? - [Members indicated assent].

790.

I do not know how you see it, Mr MacRory, but it looks like you had the easy slot. Thank you for coming. That concludes the session.

Witnesses:
Mr P Martin ) Department of Health, Social
Ms P McAuley ) Services and Public Safety

791.

The Chairperson: Mr Martin was to inform the Committee Clerk about the registration of staff working in criminal justice settings. The reply from the Department of Health, Social Services and Public Safety is before us but, for the record, Mr Martin will speak on it.

792.

Mr Martin: Since we last met the Committee, we have had a further meeting with officials from the Northern Ireland Office. They verbally confirmed that care staff working in criminal justice settings would rightly be subject to regulation by the Social Care Council. They then confirmed that in writing.

793.

The Chairperson: Is everybody happy with that?

794.

Ms Ramsey: The Northern Ireland Office and the Department are taking a very positive step in recognising the need for work in the juvenile justice setting. In our report on children's services we should make a note to that effect.

795.

The Chairperson: It was agreed that Mr Martin was to supply further details of the anticipated Social Care Council budget covering establishment and running costs. He was also to provide details of the consultation that took place between the Department and the Northern Ireland Public Service Alliance (NIPSA) before drafting the Bill on whether social care workers can remain in, or become members of, a trade union when they are registered with the Social Care Council.

796.

Ms McAuley: The budget breakdown was supplied as an annex to the letter you received. We note that at present the annual operating costs of the Central Council for Education and Training in Social Work (CCETSW) and Training Organisation for the Personal Social Services (TOPSS) are £720,000. In our projected budget, we have registrations bringing in fees of approximately £300,000. That means that by 2005-06 there will be a shortfall of approximately £400,000. We were asked whether registration fees would be sufficiently high to cover all the costs, and Committee members were concerned that those fees would be prohibitively high. The budget breakdown is based on fees ranging from £20 to £5, and that is where the shortfall arises.

797.

Mr Martin: NIPSA and other unions have been fully involved in this process.

798.

The Chairperson: Thank you for sending us the copies.

799.

Mr Martin: Since we prepared our answers, we have had a further meeting with the officials from NIPSA, and that was quite a positive and constructive meeting. They sought assurances that they would continue to be involved in discussions surrounding projects dealing with the codes of conduct and practice and with the registration scheme. We were able to offer them those assurances.

800.

The Chairperson: Mr Martin was to respond on the possibility that an amendment would be required to cover certain establishments, for example, residential summer camps, under the definition of "children's home" in clause 20(3)(e).

801.

Mr Martin: Committee Members were concerned that, as the legislation stood, those working with children in residential summer camps would be excluded from regulation and from registration by the Social Care Council. Our answer says that registered persons engaged in the provision of personal care will include those who are involved in providing care services to children, including those who attend residential summer camps. They are covered and, therefore, the extra rigour of regulation applies to those involved with children, albeit in temporary situations such as residential summer camps.

802.

Rev Robert Coulter: Would this cover the Boys Brigade going to camp?

803.

Mr Martin: It is possible for those people to be included. The Bill is written in an inclusive way. After consultation with this Committee, if such a step is considered appropriate they may be included. The Bill makes provision for that.

804.

On the point of extra protection, the Committee will have an opportunity to comment on the proposed Protection of Children Bill in the new year. That is the additional safeguard that will put our existing pre-employment consultancy service onto a legal standing.

805.

The Chairperson: I was wondering if we needed to put in an amendment there, but what you are saying is an important point.

806.

The Chairperson: We had two queries on this clause. Mr Martin was to inform the Clerk of the result of discussions with the Northern Ireland Office about the inconsistency of the ages in the definitions of "child" in this Bill and in the Criminal Justice (Children) (Northern Ireland) Order 1998. He was also to provide the definition of "school," as set out in the Education and Libraries (Northern Ireland) Order 1986, as a result of concerns raised over any changes in educational settings since 1986.

807.

Mr Martin: We provided a written definition of "school" for you, which is as set out in the 1986 Order. School means an institution for providing primary education, secondary education, or both, being either grant-aided or an independent school. When used without qualification, it means either or both kinds of school, as the context may require.

808.

I have set out our answer on the anomaly that the Committee identified regarding age. Seventeen is specified in the 1998 Order, and 18 in the Children (Northern Ireland) Order 1995. I have given you the historical position in relation to the 1998 Order, where they have always identified the age of 17 as being the age after which a person can be defined as an adult. I have offered an explanation, though the anomaly still remains. When consideration was being given to this previously, advice was taken on the position in England. The view offered was that the inclusion of those aged between 17 and 18 results in overloading in the youth courts. Seventeen is the peak age for those most involved in offending. It was suggested that youth courts were no longer giving the desired consideration to the needs of younger offenders. As a result of that, the Northern Ireland Office decided to restrict its jurisdiction to children and young people under 17. This matter will be addressed as part of the criminal justice review, and it may be worth keeping an eye on.

809.

The Chairperson: That was the advice from the Home Office to the Northern Ireland Office.

810.

Mr Martin: What had happened in England gave rise to concerns that the youth court system was being clogged up. Proper attention was not being given to the younger children. That is the history, as I understand it. They accept that there is an anomaly, and the matter will be addressed in the criminal justice review. Our childcare legislation, both in the 1995 Order and in our adoption legislation, sets the age at 18, not 17.

811.

The Chairperson: I am aware of that. We will make some comment on what you have said in our report. I do take your point, and I understand the reason that was given.

812.

The Chairperson: The Committee has already approved this clause, but members asked that we write to the Department of Environment about the wording of planning applications for residential homes. We have the reply in front of us. Do you have a copy of this, Mr Martin?

813.

Mr Martin: Yes.

814.

The Chairperson: I am relieved.

815.

Mr Martin: But I am not sure, Chairman, that I would like to speak for the Department of Environment on this.

816.

The Chairperson: We can make reference to it in our report. Our concern was that the two Departments - the Department of Health and the Department of Environment - were using the word "residential" to mean different things in the terms "residential use" and "residential care." We will put a note about that in our report. Does anyone wish to make a comment?

817.

Mr Gallagher: Is there anywhere we can go from here, apart from just noting it? The problem will remain and could create difficulties, particularly since there will be more development of the Department of Environment. While it is a Department of Environment problem, how do we try and bring about change?

818.

The Chairperson: One way of dealing with it would be to write to the Executive and ask it to sort it out for the two Departments, because it is unsatisfactory.

819.

Mr Berry: It would a good thing if both Departments were to get together to address this issue. It needs to be clarified.

820.

The Chairperson: It should be sorted out, and the best way is to refer it to the Executive.

821.

The Chairperson: Mr Martin and Ms McAuley, thank you very much.

Witnesses:
Mr A Hamilton ) Department of Health, Social
Mr S Popplestone ) Services and Public Safety

822.

The Chairperson: My apologies for keeping you waiting.

823.

At a previous meeting, it was decided that Mr Hamilton would check the definition of the word "owner" and see whether it covers authorised drivers and company car insurance. Mr Hamilton also agreed to consider whether the issue of road racing is covered by clause 23.

824.

Mr Hamilton: The word "owner" is defined in article 2(2) of the Road Traffic (NI) Order 1995 as

"in relation to a vehicle which is the subject of a hiring or a hire-purchase agreement means . the person in possession of the vehicle under that agreement."

825.

In effect, within the narrow definitions of that clause, authorised drivers and company car insurance are not covered by the statutory definition. But that is not a relevant issue because the word "owner" is only used in connection with clauses 23(3)(b) and 23(3)(c). Those paragraphs refer to those occasions when the owners of vehicles do not have insurance but, instead, have agreed to place a deposit with the courts to cover any liability associated with their driving. The main thrust of the Bill applies to those drivers who do have insurance, where the insurance companies will pay for any health service charges associated with the care of the victims.

826.

The Chairperson: Do members wish to raise any points with regard to road racing ?

827.

Mr Hamilton: This legislation does not apply to road races because, in effect, the roads on which races are run are not recognised as roads.

828.

The Chairperson: They are closed off.

829.

The Chairperson: Thank you, Mr Hamilton and Mr Popplestone.

Witnesses:
Mr J McGrath )
Mr H Farren ) Department of Health, Social
Ms M McNaughton ) Services and Public Safety

830.

The Chairperson: Thank you for coming along. We are going to discuss clauses 50 and 54.

831.

The Chairperson: Three sets of people are mentioned in the clause. Can the wording be made any clearer? Secondly, has the Department considered the human rights of the individual about whom the Commissioner has disclosed information, and does that individual have the right of appeal?

832.

Mr McGrath: We have discussed the issue of clarity with the Minister of Health, Social Services and Public Safety. The Minister proposes to bring forward an amendment at the next stage, hopefully with a clearer form of wording. Along with the legislative draftsman, we will endeavour to come up with a simpler form of wording that will cover your point.

833.

The issue of human rights was raised when the original legislation on this - the Commissioner for Complaints (Northern Ireland) Order 1996 - was brought forward. The basic right of disclosure from the Commissioner was set under that 1996 Order. An important view that the Minister endorses is that both the conferral of this right and the clarification of it in this Bill are justified because of the potential threat to the health or even life of another person.

834.

Where the information is disclosed, it would be for the person to whom the information is disclosed to decide what action to take. It may be that no action would be taken. If action were taken by an employer or a regulatory body, there would be procedures in place for that to be taken forward, and for the individual at the heart of that action to appeal and to make their own case. We do not consider it to be appropriate for this legislation to set out a right of appeal.

835.

Rev Robert Coulter: Is there any conflict between this and the Data Protection Act 1998?

836.

Mr McGrath: There is no conflict at all.

837.

The Chairperson: First, are the Health and Social Services Councils included in this or the earlier legislation? Secondly, can you confirm that the Department will issue a directive to cover the arrangements for public meetings, such as publicity, venue, location, accessibility, agenda, minutes, and the rights of members of the public to ask questions from the floor? Please also confirm that the Committee will be further consulted on the directive before it is issued.

838.

Mr McGrath: The requirement for Health and Social Services Councils to meet in public is not set down in earlier legislation, and it is not covered in the Bill as currently framed. The Minister noted this point, and thanks the Committee for raising it with us. Again, she will bring forward an amendment at the next stage to extend the remit of clause 54 to cover Health and Social Services Councils in the same way as other bodies.

839.

Secondly, when we are framing detailed guidance to health and personal social services bodies about what that means, and the issues of access, publicity and rights of members of the public, we will be very happy to come and share that with the Committee and discuss issues.

840.

The Chairperson: Thank you. Does anyone wish to make comment?

841.

Rev Robert Coulter: Can I have some clarification on the amendment?

842.

Mr McGrath: Yes. The Minister will bring forward an amendment at the next stage, and I am sure it is just so that Health and Social Services Councils will be included in that.

843.

The Chairperson: Thank you.