NORTHERN IRELAND ASSEMBLY

COMMITTEE FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY

OFFICIAL REPORT

(Hansard)

Health (Miscellaneous Provisions) Bill

Thursday 24 May 2007

Members present for all or part of the proceedings:
The Acting Chairperson (Rev Dr Robert Coulter)
Mr Thomas Buchanan
Dr Kieran Deeny
Mr Alex Easton
Mr Tommy Gallagher
Mrs Carmel Hanna
Ms Carál Ní Chuilín

Witnesses:
Mr John Farrell - Department of Health, Social Services and Public Safety
Ms Christine Jendoubi - Department of Health, Social Services and Public Safety
Mr Robert Kirkwood - Department of Health, Social Services and Public Safety
Mr Donncha O’Carolan - Department of Health, Social Services and Public Safety

The Acting Chairperson (Rev Dr Robert Coulter):
The health (miscellaneous provisions) Bill will be the first piece of primary legislation to come before the Committee for Health, Social Services and Public Safety. It will be introduced in the Assembly on 5 June, which is not far away. The Committee will then be required to work on the Committee Stage of the Bill. That will mean going through the Bill line by line and clause by clause. Those who have gone through that process before know that it can be harrowing. We must decide whether to support each clause or to recommend a change.

We are glad to have officials here today. They will explain the policy behind the Bill and go through its general provisions. Members have received a paper on suggested issues for discussion, a departmental briefing paper, which contains the draft Bill, and the explanatory and financial memorandum.

I welcome the witnesses. Given what I have just said, we are delighted to have you with us in order that you can give us a steer on the Bill. Instead of taking time to welcome you individually, I will leave it for you to introduce and say a word or two about yourselves.

Ms Christine Jendoubi (Department of Health, Social Services and Public Safety):
I am Christine Jendoubi, and with me is Robert Kirkwood, who has been responsible for producing the instructions on the legislation and preparing the explanatory and financial memorandum. Donncha O’Carolan is the acting Chief Dental Officer, and John Farrell is assistant director of primary and community care. We are pleased to be here.

Shall I begin by speaking about the Bill?

The Acting Chairperson:
Yes. We are strapped for time; if I restrict you, it is not because I am trying to get rid of you. Will you compress your contributions a little?

Ms Jendoubi:
We can be quick.

The Acting Chairperson:
We will loose you and let you go.

Ms Jendoubi:
Although the Bill has the words “miscellaneous provisions” in its title, it has three main functions.

Some patient-safety issues arose out of the Shipman inquiry. As a result, the Bill will primarily allow health and social services boards to suspend all family practitioners — GPs, dentists, opticians and pharmacists — pending a hearing by a professional regulatory body, a court case or the Health Service tribunal. Currently, the boards do not have the power to do that; they cannot suspend practitioners until after a hearing. However, given that it may take a couple of months or longer for a case to be heard by a regulatory body, an element of risk remains.

Dr Deeny will be familiar with the concept of the performers list, but other members may not be. Each health and social services board maintains a performers list of GPs, who cannot practice unless they are on it. The Bill will allow for a single performers list for each medical profession in Northern Ireland. Currently, the boards maintain a list of GPs, and the Central Services Agency (CSA) maintains a list of pharmacists, dentists, and opticians. In future there will be one performers list for all professions, and no one will be able to practice unless they are on it.

In addition, the Bill will allow the boards to place conditions on whether someone is accepted on to the list. That cannot be done now — people are either on the list or off it. In future you might have a board allowing a GP to practice provided that he or she completes a catch-up course on, for example, minor surgery.

The Bill also gives new powers to the Health Service tribunal on the disciplinary matters that it can deal with and the cases that it can hear. There is a new ground for misconduct: unsuitability by virtue of personal and professional conduct. The tribunal’s powers will also extend to cover applicants on a list, which is not the case at the moment, and locums.

The other main provisions in the Bill are around providing a legislative base for the dental services contract, to allow boards to enter into a contract with dental practices and individual dentists.

One of the reasons the Bill is called “miscellaneous” is that it includes a minor amendment to the smoking legislation to will allow performers on a stage to smoke if the artistic integrity of the performance requires it. That is a provision that was brought in in England but not in Wales. The previous Administration decided that they would like to bring it in here. That is obviously a matter for the Committee to contemplate.

There are a couple of other minor things in the Bill. In accordance with the EU working legislation it removes the Department’s right to make regulations on retirement ages for doctors and dentists. At the moment there is a prescribed retirement age of 70 for dentists, but one has not been prescribed for doctors. That right has now been removed altogether.

There is also a provision to bring Northern Ireland into line with the rest of the UK in allowing exemptions from Health Service charges for overseas visitors on exceptional humanitarian grounds. For example, if a ship in Belfast harbour went on fire and crewmen had to be taken into hospital for more than emergency care, they would no longer be charged for the additional care.

Those are the main provisions of the Bill. I am happy to take questions.

The Acting Chairperson:
What has caused the apparent delay between the consultation in 2005 and the introduction of the legislation?

Mr Kirkwood (Department of Health, Social Services and Public Safety):
The consultation in 2005 was a 12-week consultation. The provisions in the Bill had to be drafted and taken forward and consulted on again. That happened in August-October 2006. The time taken for the legislative process, including drafting, was necessary. After October 2006 it was drafted as an Order in Council. The Order was made at Westminster in December, and would have made it through the Westminster process, but devolution came along, initially in March, and was then put back a further six weeks. That is what caused the extended timeframe for bringing the Bill before the Assembly.

The Acting Chairperson:
So it is purely and simply drafting that held it back?

Mr Kirkwood:
Yes. There are set procedures for taking primary legislation through. To draft a Bill and take it through the Assembly process takes a year to a year and a half.

Ms Jendoubi:
The standard time is 68 weeks.

The Acting Chairperson:
It still baffles me why it took so long.

Mr Gallagher:
I would like to know whether this change in legislation will do anything to address the problem of the scarcity of NHS dentists. It is particularly serious in the west and around the border areas. There are reasons for that. There is a need for urgent action on this, because there are quite serious implications for health.

Is local commissioning, either through contracts or directly employed dentists, going to help to make more NHS dentists available in order to enable certain groups of people, such as rural dwellers and the elderly, to get access to treatment that they do not have access to at present?

Mr O’Carolan (Department of Health, Social Services and Public Safety):
It will improve the situation. Dentists can currently set up wherever they want and treat whomever they want; that is the way their contract is posed. The new contract will reverse that to enable the boards to have a part in local commissioning. They will have a set amount of money for a particular area — for example, the west. If dentists decide that they do not want to sign up to these contracts, the board can then put them out to tender to other dentists or corporate dental bodies, or directly employ its own dentists. The boards themselves would not actually employ the dentists; it would be done through the trusts or through some of the agencies.

That process is already in place. The Northern Health and Social Services Board, through the Dalriada Urgent Care co-operative, has already advertised for a salaried dentist, and the Western Health and Social Services Board has a bid with us at the moment for six salaried dentists. I am aware that that is particularly focusing on the Fermanagh and Tyrone areas.

Therefore, local commissioning will shift the balance of power — instead of dentists being able to make all of the decisions, a lot more power will be put into the hands of the boards or successor bodies such as local commissioning groups, who will be given the authority to direct the resources to the areas in most need.

Mr Gallagher:
Thanks. I do not want to suggest that there is a dispute between the Department and the dentists — that was not the purpose of the question. As regards the bid for dentists that is with the board in relation to the west, does that bid have to wait until the legislation is implemented?

Mr O’Carolan:
No. We can proceed in the interim.

Mr Easton:
I do not understand why there is a provision in the Bill to allow performers to smoke on stage —somebody must not have had a job to do.

Ms Jendoubi:
I could not comment on that.

Mr Easton:
I have a problem with actors being allowed to smoke on stage, as it will mean that that smoke is filtering out into the crowd. That is passive smoking and is something that we are meant to be cutting back on. I do not understand why it has to be in this legislation just because England has it. It is a hypocritical stance to be taking on the issue. I am opposed to it, and to be honest, I think it is stupid. I hope that no-one minds me saying that but that is my opinion.

Ms Jendoubi:
The provision is in the Bill because that was the wish of the previous Administration. The current Administration is entirely at liberty to take a different view.

Mr Easton:
As smoking is to be stamped out in order to try to improve people’s health, I do not think that this clause should be included in the Bill. I will be pushing to get rid of it.

The Acting Chairperson:
I presume since the clause is in the Bill, it has the support of the Minister. Is that the case?

Ms Jendoubi:
The Bill is before the Assembly in its present form because it was prepared for Westminster and could be presented intact. Mr McGimpsey’s view on the provision for smoking by actors in performances is that it is there pro tem until the House gets the chance to discuss it. I would not suggest that he is hugely in favour of it.

The Acting Chairperson:
Thank you. That was my own impression also.

Mrs Hanna:
I welcome what has been said about the career prospects of National Health Service dentists. However, I still think that there are issues — for you and for this legislation — about motivating and reimbursing dentists so that they do not vote with their feet and go into private practice.

Dentists need to be doing more than just filling teeth; there needs to be good dental-health promotion. A lot more needs to happen, because there are literally queues outside the few remaining National Health Service dentists.

This particularly affects young people who are working in low-paid jobs and who have to pay for treatment. There are cases in which people may need root canal surgery, or something else that costs quite a bit of money. People can be in pain and need treatment but they cannot afford it because of the amount of money involved in paying for private treatment. It could cost over £100, and that is a lot of money to those who are not earning much. Therefore, people’s teeth are actually decaying because of the lack of dental practices. Although what has been said is welcome, we must watch and see what happens.

Mr O’Carolan:
The Department launched the primary-dental-care strategy, which will fundamentally shift the way in which dentists are paid. At the moment they are paid on a piecework basis — there is a fee for each item of work they do. Under the new system, a block payment will be made for a dentist’s time, rather than for his volume of work. That will free up time for dentists to look at preventative care, which was mentioned by Mrs Hanna. We have very poor oral health — the worst in the whole of the UK and Ireland. Our system is purely treatment-focused at the moment. However, if dentists were paid for their time rather than for the work done, it would allow them to focus more on prevention.

Mrs Hanna is correct in that there must be an attractive remuneration system for dentists, otherwise they will walk away from the Health Service — and market forces dictate that there is quite a large private market for them to walk into. There is a limited amount of money in the pot and it must be used efficiently and effectively. Dentists are essentially on a treadmill. Going for the block payment would take them off that treadmill, although there is obviously a lot of treatment work to be done also. In addition, their contract should be much more attractive than it is at present.

Mrs Hanna:
I welcome that, and I will watch this space for improvements.

Under what circumstances would a GP be suspended? I agree that after the Dr Harold Shipman case there must be conditions and safeguards. However, I presume that there must be good reasons for suspending a GP.

As regards smoking by performers in performances, I cannot understand why someone cannot hold a fag up and huff and puff and pretend to be smoking, without having to have real smoke. It does not make sense to me.

Mr Kirkwood:
As regards the power to suspend, which is included in the primary legislation, the details of the circumstances when a board can suspend and how long it can suspend for will be set out in regulations, which will go into more detail. The Department will also send out detailed instructions to each health and social services board. The guidance will not be totally restrictive but will set out in detail when suspension should be applied. It is certainly not a power that will be applied willy-nilly.

Mrs Hanna:
It would probably include early warnings, would it?

Mr Kirkwood:
Yes. It is a power that will enable an authority to act swiftly, while a case is being investigated and taken to a tribunal or to a professional body. It is not to be used off the cuff. There must be regulations and guidance in place.

In relation to the exemption for performers as regards smoking, the Bill was hijacked — if you like — to be used as a vehicle to take that provision forward. The provision is already in the Health Act 2006 in England, and allows for smoking in performances if that helps the artistic integrity of a play. [Inaudible.]

Ms Ní Chuilín:
There will be more dentists leaving the Health Service. However, I am concerned about the number of teeth being extracted from young people. In one part of west Belfast, 70% of the children have had two or more extractions, and many of them were not registered with dentists. I am hoping that this legislation will enable a more holistic approach to be taken to get children registered with dentists and have better oral care. There has been a lot of consultation and some promotion on that subject. That statistic is not only shocking, but is an indictment of the Health Service as a whole.

My other question relates to the Dr Harold Shipman case. Proposals were introduced in England — and possibly the rest of Britain — but not here. What implication has that had for boards here as regards lessons learned?

Mr Kirkwood:
It was introduced in England and Wales and subsequently in Scotland. The Bill will bring us into line with the rest of the UK. Although the provision is not yet in force in Northern Ireland, a board can initiate a procedure to have a practitioner removed from the list if it has doubts about that practitioner’s ability or about another factor relating to him or her.

Ms Jendoubi:
It could be done through the regulatory body.

Ms Ní Chuilín:
Therefore, it is regulated.

Ms Jendoubi:
Yes.

Ms Ní Chuilín:
That is the point that I am getting at.

Mr Kirkwood:
It will be a quicker process.

Mr O’Carolan:
I want to pick up on your important point about dental health. We will not necessarily improve the dental health of the population through the dental contract — that is only one factor. Dental health is affected adversely by poor diet and is enhanced by other factors, such as the use of fluoride toothpaste and fluoridation in the water supply.

Ms Ní Chuilín:
Poverty is an issue as well.

Mr O’Carolan:
Absolutely. Dental health is affected by lifestyle and factors such as deprivation. Apart from introducing a dental contract that will have a preventative element, for the good of public health, we must change the population’s diet. For the past four years, we have implemented fluoride toothpaste schemes in the 20% most deprived wards. We must link in with general public-health initiatives and with programmes that address health issues such as obesity and diabetes — for example, drinks and foods that have a high sugar content also cause dental decay. The Republic of Ireland has only half the tooth decay of Northern Ireland — purely because of water fluoridation.

Dr Deeny:
If I ask only about GPs, it might be perceived as a conflict of interest. As for the retirement of GPs — all the GPs whom I know want to leave the profession. The age to which they will work is not an issue.

My questions address the removal of a health professional. First, it is good that performance is streamlined across the profession and that everybody is assessed? GPs are appraised every year; I am due to have my work appraised quite soon. Will all the professions be appraised?

The medical profession deserves respect, but Harold Shipman brought dreadful shame on it — he was the greatest mass murderer on this part of the planet. You say that the health and social services authority will be given powers. How will the powers be applied when we have one health and social services authority and seven local commissioning groups (LCGs)? Will the power to remove a person from his or her job be delegated to the LCGs? What qualifications will those who will deal with complaints against GPs have? On what basis will an investigation be triggered? Will it be based on one patient’s complaint? There must be scrutiny.

GPs should be made accountable for any wrongdoing. However, there are malicious complaints. I hope that GPs will not be subjected to such intense scrutiny on the basis of one complaint. Will power be delegated to the LCGs or to the health and social services authority, and on what basis? Lastly, will all health professionals be appraised annually?

Ms Jendoubi:
You will have noted from the detail in the Order that there is a huge number of regulations. Similar issues in the regulations will be brought to the Committee and to the Assembly to be resolved.

Will power to suspend be delegated to local commissioning groups (LCGs)? No. In our view, there should be one performers’ list, and being placed on, or removed from, that list should be a matter for the strategic health authority. The Bill still refers to the boards simply because we cannot anticipate the will of the Assembly as regards the regulatory reform Order that will come before it very shortly. I do not think that anybody would see this as a matter that should be delegated. As the performers’ list will be maintained centrally, the process of adding to it, or removing from it, must be conducted centrally, too.

When would the power to suspend health professionals be used? As Mr Kirkwood said, lots of regulations and guidance will be issued in that regard. Would the power be used when dealing with one complaint? Regulations notwithstanding, that would depend on the nature of the complaint and the circumstances, and the board would have to make a mature, proper decision taking those factors into consideration. For example, a single complaint could be so damning that the board would have no choice but to suspend the practitioner.

Mr John Farrell (Department of Health, Social Services and Public Safety):
It is also important to emphasise that the suspension would be seen as a neutral act until the investigation had been completed and the case brought before the tribunal or the regulatory body.

Dr Deeny:
In other words, the health professional would be suspended until proven innocent or guilty. Is that right?

Mr Farrell:
Any decision on whether to suspend a health professional would depend on the nature of the incident brought before the board or the new authority. However, at that stage, any suspension would be seen as a neutral act and would not reflect a practitioner’s guilt or innocence; no judgement could be reached until the investigation had been completed. However, if an incident had implications for patient safety, the board or authority would have a responsibility towards patients. If, for reasons of patient safety, the most appropriate course of action were to suspend a GP, dentist or whoever until the investigation was completed, that is what would happen. However, at that stage, the suspension would be considered a neutral act.

Mr Kirkwood:
The legislation also provides for —

Dr Deeny:
I am concerned about the power to suspend.

Mr Kirkwood:
The finer details of the suspension procedure will be set out in regulations, and the General Practitioners Committee (GPC) will be consulted on the provisions that should be included. The Bill provides the enabling power to set out in regulations how the suspension would work. Should the Bill ever receive Royal Assent and become an Act, it would not mean that boards could suspend a practitioner on a whim — they could not.

The regulations will set out the details of how a suspension should be conducted, and guidance will also be issued. The profession will also be consulted on this matter. We are going no further than England, Scotland and Wales: this legislation is already in place there, and, as far as I am aware, it is working reasonably well.

Dr Deeny:
We all know what the public think when a doctor is suspended — he or she is considered to be guilty before even being tried. It would be dreadful if a situation arose whereby a practitioner was suspended and later found to be innocent of the charge. In England, unfortunately, a GP committed suicide because he was accused of an offence of which he was later found innocent in court. He had endured the terrible trauma of suspension and had been tried by the media.

Mr Kirkwood:
Again, that consideration must be weighed against the board’s duty to act responsibly. As Ms Jendoubi said, at present, a practitioner against whom an allegation has been made could continue to practise for a period of eight or 12 weeks until the case comes in front of a professional body or a tribunal.

Is that a good thing? Not if the practitioner is another Harold Shipman. On the other hand, however, one has to judge that against blackening someone’s name unreasonably. Those are the issues that will have to be teased out when the regulations are written and the policy behind the intention of those regulations is expressed. That is for a later date; the Health (Miscellaneous Provisions) Bill merely introduces the power to make those regulations.

Mr Buchanan:
I have some concerns about dental matters, particularly in relation to NHS patients and the salaries paid to dentists. Will there be adequate funding to ensure that NHS patients can expect the same service as those people who pay for their dental treatment, and not just a basic service? How far do the proposed changes replicate the changes in dental services in England and Wales? What consultation was carried out on the issue? What views were expressed by patient representative bodies and by dental practices?

The other issue is the smoking ban. If the ban that has recently been introduced in Northern Ireland is to be effective, the proposals intended for inclusion in the Bill are entirely wrong. They are ludicrous, and I will oppose them. What pressure has been brought to bear to introduce the specific exemption that is before us?

Mr Kirkwood:
In relation to smoking?

Mr Buchanan:
Yes.

Mr Kirkwood:
No pressure has been brought to bear. It was the will of the previous Administration that we should follow English legislation. The Health Act 2006 contained similar provisions, and that is why the exemption appears in the proposed legislation. It is as simple as that.

Mr Farrell:
The exemption was in the legislation when it was introduced as an Order in Council at Westminster. When the responsibility fell to the Assembly to enact the legislation, the exemption was included.

Mr O’Carolan:
Mr Buchanan raised some points relating to dentists’ salaries, changes to the dental service in England and Wales, and the consultation process. Health Service patients have access to the same range of treatments as those who pay for their dental work. Health Service-salaried general dental practitioners charge the same fees as independent general dental practitioners. That is a very important principle.

The point is that if dentists continue to leave the Health Service, money will, potentially, remain unspent. Why not reinvest that in the service and employ dentists directly? In that way, at least, the public are guaranteed access to Health Service dentistry.

Mr Buchanan:
Yes, but why are dentists leaving the NHS? It is simply because the amount of money allocated is insufficient to do the job. If dentists are employed on a salaried basis, and the same amount of money is allocated for each procedure, it will mean that NHS patients will receive only a basic service. They will not receive a proper service, because the money is not there.

Mr O’Carolan:
We intend to transform the way in which dental practitioners are remunerated. At present, dentists are only paid for what they do, with a block payment on top. Largely, however, the money is spent on fees for each item of service. We are going to move away from that, so that we are paying for their time, rather than the volume of work that they produce. That will be the same whether the practitioner is a salaried or an independent dentist.

It is not a matter of simply saying that the system is underfunded. There is a huge private market. People want their teeth whitened, or to have cosmetic veneers. They want white fillings for their back teeth, and the private market can command high fees for that type of work.

We cannot compete with the private market. There simply is not enough money in the Health Service for that. Dentists have a choice between doing private or public work, unlike in medicine, where the same private market does not exist. Public resources must be used effectively.

To respond to the point that was made about the changes that have taken place in England, the principle is the same in so far as dentists are moving from a piecework system of payment to a time-to-clock system, but that is where the similarity ends. In England, performance is measured using UDAs. That unfortunate term stands for “units of dental activity”. Block contract is now used, but dentists’ pay is measured by their output. We do not want to go down that route; we want to pay dentists for their time and insert appropriate performance measures so that we achieve what we want.

The strategy for the consultation was issued in December 2006, and the consultation period concluded in March 2007. There were about 46 replies, which were largely supportive.

Dr Deeny:
There are changes in the way in which dental services are being organised, and the issue of out-of-hours work must be considered. It is not uncommon for patients to have a treatment, such as repair of a dental abscess, during the day, only to discover later that evening when a complication arises that they have no access to a dentist. They then ring an out-of-hours GP, who must clear up the mess. If people are to access good healthcare — including dental healthcare — under the NHS, they should have access to a dentist who can work out-of-hours, just as GPs do. That must be part of future plans.

Mr O’Carolan:
Out-of-hours work is written into dentists’ contracts, and they are supposed to provide that service.

Dr Deeny:
That does not happen in my area.

Mr O’Carolan:
There are pain-relief clinics in the Eastern, Northern and Southern Health and Social Services Boards. Craigavon Area Hospital, Braid Valley Hospital in Ballymena, and Belfast City Hospital all run pain-relief clinics.

However, you are absolutely right: as is stated in the primary dental care strategy, the onus will be on the health boards to provide out-of-hours emergency dental services, because that is written into their contracts. That means that a consistent approach will be adopted.

You are correct to say that there is no pain-relief clinic in the Western Health and Social Services Board; however, there is a rota system that can be used to provide cover. I worked in Derry for 15 years, where a rota was in place to cover the city side. The extent of the rota is left up to individual towns, and in places it is patchy, as you have pointed out. Under the new system, the onus will be on the health boards — rather, the proposed health and social care authority, which will replace the four boards — to provide a consistent and uniform out-of-hours service across Northern Ireland.

Dr Deeny:
Can that be insisted on?

Mr O’Carolan:
Those terms are written into the contract, and that places a duty of responsibility on the boards, and on the future authority. It is not optional — it must be included in the contract.

Dr Deeny:
Whom can I expect to take responsibility at weekends? Do I go to the Sperrin Lakeland Health and Social Care Trust or to the Western Board?

Mr O’Carolan:
At present, if a patient is registered with a dentist, that dentist has a duty to provide out-of-hours care seven-days-a-week but not 24 hours a day. A problem arises when a patient is not registered with the dentist, because, at present, there is no out-of-hours relief-of-pain clinic in the Western Board. There is provision in the Eastern, Northern and Southern Boards. In those boards, it does not matter whether patients are registered: if they have a dental emergency and go to the designated site in their area, they will be seen.

Dr Deeny:
I am not proposing to move house. In short, out-of-hours care is not happening in the west. That means that a patient who telephones our out-of-hours service cannot get a dentist. Where do we go from there?

Mr O’Carolan:
I do not know whether that is true. When I worked in Derry, there was a dentists’ rota for both the city side and for the Waterside, so the city was covered. When I worked there, the Western Health and Social Services Board received very few complaints.

Dr Deeny:
There is more to the west than Derry.

Mr O’Carolan:
That is correct. I cannot speak for practices in Omagh and Enniskillen, because I didn’t work there. Under the Western Board’s contract, however, dental practices there should be providing out-of-hours care for their patients if those patients are registered.

The Acting Chairperson:
That was very enlightening for us. No doubt, other questions will arise as the matters in question progress. Thank you very much for coming in to help the Committee with this matter.