House of Commons Hansard Debates for 7 May 1993

Clause 6

Registration : supplemental provision

Mr. Moss : I beg to move amendment No. 1, in page 5, line 24, at end insert -(a)'.

Mr. Deputy Speaker : With this, it will be convenient to discuss also the following amendments : No. 2, in page 5, line 25, at end insert and

(b) the address at which he has his practice or principal practice or, if he is not practising, such address as may be prescribed. No. 3, in page 6, line 9, at end insert--

(the meaning of "principal practice" for the purposes of subsection (1).) No. 29, in clause 39, page 28, line 20, leave out as his address'.

Mr. Moss : Amendment No. 1 will require the statutory register to show the osteopath's practice or principal practice address as well as the type of registration--full, conditional or provisional--that he or she holds. The register forms the heart of the statutory scheme. It will provide the assurance to members of the public that a practitioner whose name appears in the register has been appropriately trained, is properly qualified and is fully competent in the practice of osteopathy.

The provisions of clause 37 exempt osteopaths from the rehabilitation of offenders legislation, and place them under an obligation to declare all their criminal convictions, including spent convictions if asked, when applying for registration. So members of the public will be provided with an additional assurance as to a registered practitioner's bona fides and character.

The statutory register will elevate the scheme from the current system of voluntary registration. Voluntary registration has worked exceptionally well for the majority of practitioners. It has also played a key role in paving the way for statutory regulation. However, by its very nature, the voluntary system cannot enforce standards of competence or conduct. If a practitioner chooses not to participate in the scheme, the body that administers the scheme is completely powerless to exercise any jurisdiction over that individual's practice. That fundamental weakness brings into sharp focus the need for a statutory scheme.

As the law currently stands, anyone can call himself an osteopath and set up in practice. There is no obligation to undergo formal training of any nature or to comply with the standards of professional competence. Through the establishment of a statutory register maintained by a statutory council, standards of training, education, proficiency and professional conduct can be enforced throughout the profession in the United Kingdom. The statutory scheme will also require anyone who wishes to practise as an osteopath to conform to the standards set, to be registered on the statutory register and to submit himself to the authority of the statutory council.

Recording the address of a practising osteopath's practice or principal practice will not only provide members of the public with an essential piece of additional information--where to go for treatment--but will play a vital role in the election of members to the general council. The latter point will also apply to the address shown on the register for non- practising osteopaths. The precise detail is set out in the schedule which we shall examine later.

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I draw the attention of hon. Members to paragraph 9 of the schedule. It specifies that eight of the osteopathic members of the general council are to be elected by fully registered osteopaths whose registered addresses are in England. Three others are to be elected by fully registered osteopaths with registered addresses in Wales, Scotland and Northern Ireland--one from each of the three countries. The schedule also provides for a 12th member, who must be a registered medical practitioner at the time of his election, to be elected by fully registered osteopaths whose registered addresses are in the United Kingdom.

We spent some time thinking about the address that should appear on the register in the case of a non-practising osteopath. Our initial instinct was to select the osteopath's home address, which would have been defined more precisely in the rules. However, two examples came to mind to discount that option. The first was the case of a practitioner who might no longer be in current practice but was widely respected within the profession and had established a clinic, perhaps under his or her name, which attracted practitioners of the highest calibre and was held in the highest esteem by its clientele. Although no longer in current practice, the practitioner might continue to hold the reins of the clinic and may be regarded as the driving force behind its success. Such a person would undoubtedly want the address shown in the register against his name to be that of the clinic rather than his home address, regardless of how "home" was described in the rules.

The second example raised arguably more serious anxieties. A practitioner might have received menacing threats sufficient to make him consider temporarily suspending practice or, even worse, to make him cease practising because the threats so affected him that he was no longer able to practice. The worst thing that such a person could face if he decided to withdraw from current practice would be the appearance of his home address in the register because he chose to maintain his registration.

I accept that the examples are fairly extreme. Setting them aside, it is likely that some osteopaths will wish to keep their professional and private lives separate and, for such reasons, will not want their home address to be shown on the register. For all those reasons, it is felt that the matter should be left to the rules. The rules could provide a list of different types of address which a non-practising osteopath could choose to be recorded on the register.

Mr. Quentin Davies (Stamford and Spalding) : Clause 6 is the heart of the Bill because it establishes the register which distinguishes a professional osteopath from simply anyone who decides to use that term. Clause 6 is extremely important if the Bill is to get on to the statute book. Over the years and the generations, there has been considerable scepticism by the medical profession about osteopathy and practitioners of other forms of what is now called complementary or alternative medicine.

Before I came here to speak today, I took advice from a member of the medical profession for whose judgment I have the highest regard--my father. He tells me that, in 40 years of medical practice, he has never yet referred a patient to an osteopath. He has never yet come across a case in which he believed that the conventional medical disciplines of orthopaedics and physiotherapy were insufficient to deal with the complaints for which

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osteopaths believe that their talents make them exceptionally qualified. Nevertheless, my father, in common with many members of the medical profession, has an open mind and, what is more, he has no doubt as to the integrity of osteopaths. No doubt there are some bad apples in that profession, just as there are in any other profession or activity.

It can only contribute to the confidence of the public and that of the medical profession to advise people whether an osteopath might be able to contribute something to the treatment and cure of symptoms, if it is absolutely clear who is and who is not an osteopath. Such confidence will also be enhanced if everyone is clear about the definition of the word "osteopath". It is therefore essential that we have such a register.

I congratulate my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) on his success in steering the Bill through Committee. He has put a great deal of hard work and careful thought into the Bill, and I have considerable regard for his judgment. That encourages me to offer the Bill my general support.

If the general council is to have the responsibilities set out in clause 6 conferred on it, there should be no doubt about its proactive role. There should be no doubt about the precision and rigour with which the register will be drawn up and maintained. It is therefore important that the amendments proposed by my hon. Friend the Member for Upminster (Sir N. Bonsor), in particular amendment No. 2, which leave out "may" and inserts "shall"--

Mr. Deputy Speaker : Order. the hon. Gentleman is talking about amendment No. 48, which we have not yet reached. Amendment No. 2 refers to the address of an osteopath.

Mr. Davies : I hope that I will be able to catch your eye, Mr. Deputy Speaker, when we reach amendment No. 2.

If we are to have a register, a name and address must be provided. There should be no misunderstandings about that address and, therefore, the proposed amendments greatly contribute to the precision and the credibility of the Bill.

Amendment agreed to.

Amendment made : No. 2, in page 5, line 25, at end insert and

(b) the address at which he has his practice or principal practice or, if he is not practising, such address as may be prescribed.'.-- [Mr. Moss.]

Sir Nicholas Bonsor : I beg to move amendment No. 48, in page 5, line 26, leave out may' and insert shall'.

I am grateful for all that my hon. Friend the Member for Stamford and Spalding (Mr. Davies) said about the importance of the amendment. I stress, as my hon. Friend did, the importance to the Bill of the register and the concept of registration. My hon. Friend is right to say that they are central to the Bill.

It is also important to ensure that that registration process is open. There is no point in keeping a register if no one is clear about its purpose or the rules that guide its compilation. It is particularly important that people are aware of the rules that guide who may or may not be included on that register. It is for that reason that I have tabled the amendment, which would amend clause 6(2) :

"The General Council may make rules in connection with registration and the register and as to the payment of fees"

to read : "The General Council shall" and so on.

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I am particularly keen that the rules that apply to registration should be made clear to the public as well as to osteopaths, so that a proper assessment can be made of the value of that registration. If, for example, the general council decided, in its wisdom, not to make rules in connection with some of the matters set out in clause 6(3), the value of the registration would be greatly diminished. The registration procedure will cover a number of matters. For example, clause 6(3)(e) states that the general council may make rules about

"the manner in which the Registrar is to satisfy himself as to the physical and mental health of any person applying for registration and the procedure for so doing".

Clause 6(3)(d) provides that the general council may make rules about

"the manner in which the Registrar is to satisfy himself as to the good character and competence of any person applying for registration and the procedure for so doing".

Unless people can be satisfied that the registrar has made a proper decision and explored fully the facts behind it, the value of the register will be low.

10.15 am

I am not happy that the general council's ability to make a discretionary ruling as to what is and what is not to be disclosed should be left unfettered. Perhaps my hon. Friend the Member for Cambridgeshire, North- East (Mr. Moss) can tell me whether it is proposed that the rules that govern the establishment of the register and its contents will be made public. I am concerned about the use of the word "may", because, as I read it, it is possible under the Bill for those rules to be unrecorded and undisclosed.

I hope that the general council will have to make rules that set out clearly the background against which the register has been compiled. I hope that it will also set out clearly the criteria that will be taken into account by the registrar when he sets up the register. The register should be available to anyone who wishes to read it, so that he is clear as to its value. I hope that my hon. Friend the Member for Cambridgeshire, North-East will be able to assure me on those issues.

Mr. Quentin Davies : I have already paid the compliment to my hon. Friend the Member for Upminster (Sir N. Bonsor) of approving his amendment, even before he had a chance to move it. My hon. Friend has made the essential argument in favour of it, and there is not much that I need to say in support.

When we legislate to give a professional body the power to make rules, it is unsatisfactory if we do not stipulate that that body has the responsibility to make those rules and that, therefore, it must make the appropriate rules. Otherwise, we take away with one hand the responsibility that we have appeared to confer with the other. I set some store by my hon. Friend's amendment, and I agree with what he said about tightening the terms of this crucial clause.

Mr. Moss : My hon. Friend the Member for Upminster (Sir N. Bonsor) may be aware that at least two similar amendments were considered in Committee. My fundamental reason for resisting my hon. Friend's amendment is the same as that which I gave in Committee. Such an amendment would deprive the general council of the responsibility of exercising its own judgment on important matters--for example, the rules connected with registration and the payment of fees.

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The Bill is founded on the principle of self -regulation, and it should not render the general council impotent in determining policy and priorities by inflexibly prescribing all its functions in legislation. That would reduce the status of the general council to that of purely an administrative body. The purpose of the Bill is to provide the profession with the statutory framework to enable it to regulate its own activities and chart its future development and growth.

It is worth remembering that the profession itself is seeking the measure. The proposed scheme of statutory regulation will replace the current system of voluntary registration. It is doing so not because, under the voluntary schemes, the profession has failed satisfactorily to register its affairs, but to give it the authority to do more effectively what it has been doing successfully for almost 60 years. Half the members of the general council will be specifically serving the interest of the profession.

Therefore, there is absolutely no basis on which to think that the general council would not make sensible decisions on matters of registration, the payment of fees or other key issues. Furthermore, there is no basis for assuming that such decisions would be detrimental to practitioners. If the profession had any expectation of operating anything but a fair scheme, it would not seek statutory regulation.

My hon. Friend the Member for Upminster asked whether the rules would be made public. I am most happy to confirm that they will.

Mr. Quentin Davies : I am grateful for my hon. Friend's assurance, as the issue of the rules being made public is important for the transparency and the public confidence needed if the new system, envisaged in the Bill, is to work. However, if my hon. Friend can give that clear assurance, why is it not written on the face of the Bill?

Mr. Moss : I was about to come to that matter.

The profession is also looking to submit itself to the authority of the Privy Council. If the Privy Council felt that the general council was failing to perform a function that it should perform, it would be able to intervene and direct the general council as appropriate. In extreme cases, the Privy Council could step in and take over the general council's responsibilities. Since the profession, through the legislation, is placing itself under the scrutiny of the Privy Council, that council will show the way in which matters are proceeding in the public interest by making a statutory instrument which is in the public domain.

The Bill already provides the necessary safeguards against the concerns of my hon. Friends. It also entrusts to the general council the ability to exercise its judgment in fulfilling its statutory duty to regulate the osteopathic profession.

Sir Nicholas Bonsor : I must confess that my hon. Friend has not wholly satisfied me on why the Bill contains a great divide between what the general council "shall" do--which applies to about half the provisions- -and what the general council "may" do--which applies to the other provisions. I am puzzled over the positioning of the dividing line between discretion and ruling. However, I am grateful to my hon. Friend for giving his assurance about the openness of the rules that lie behind regulation. Therefore, in the light of what my hon. Friend has said, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 6

Registration : supplemental provision

Amendment made : No. 3, in page 6, line 9, at end insert (m) the meaning of "principal practice" for the purposes of subsection (1).'-- [Mr. Moss.]

Clause 8

Restoration to the register of osteopaths who have been struck off

Mr. Moss : I beg to move amendment No. 4, in page 7, line 19, leave out any' and insert an'.

Mr. Deputy Speaker : With this it will be convenient to take the following amendments : No. 14, in clause 14, page 11, line 16, leave out reaching' and insert having reached'.

No. 16, in clause 23, page 19, line 26 leave out or (5)' and insert (5) or (6)'.

No. 26, in clause 33, page 25, line 36, leave out consider' and insert considers'.

No. 27, in page 25, line 39, leave out themselves' and insert itself'.

Mr. Moss : The group of what might first appear to be small drafting amendments contains two matters of substance. Amendment No. 4 is a simple drafting amendment, but amendment No. 14 will ensure that the same criteria would be applied for the recognition of non-United Kingdom qualifications, other than those covered by Community law, as will be used for the recognition of United Kingdom qualifications.

Similar amendments were made in Committee in respect of United Kingdom qualifications, but it seems that this one slipped through the net. The House has already heard that the registration system proposed in the Bill will ultimately centre on whether or not a practitioner holds a recognised qualification, which equips him or her with the education, training and skills required for the safe and competent practice of osteopathy.

Clause 14 provides the mechanism for recognising the qualifications that meet that standard. Provision is made in clause 16 for withdrawing recognition if that standard is no longer met or the institution involved fails to comply with the conditions attached to the continued recognition of its qualifications. I shall say more about the conditions later.

In Committee, I described how the wording

"evidence of reaching the required standard of proficiency" was a little too tight, as it demanded that a qualification would have to hit the mark when the application for recognition was being considered. It did not enable a qualification that had previously been met and was meeting the required standard when it was awarded to the osteopath to be recognised if it no longer met the standard or was, perhaps, no longer being awarded. The amendment will extend the same flexibility as is now provided for United Kingdom qualifications to non-United Kingdom qualifications.

Decisions on whether a qualification provides evidence that someone had reached the required standard of proficiency laid down by the general council under clause 13 for the safe and competent practice of ostoepaths-- and so should be recognised for the purposes of registration--will initially be made by the education committee. If it

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is satisfied that the qualification provides such evidence, it will recommend to the general council that the qualification should be a recognised qualification.

In keeping with the practice adopted by schemes governing other health care professions that operate a similar system of recognition, the general council will seek the approval of the Privy Council for the qualification to be recognised. To assist the education committee in that task, clause 12 enables the committee to appoint visitors, who are almost certain to constitute the principal means by which the education committee obtains information on the nature and quality of instruction given by an institution. In turn, that will provide the basis on which the committee can recommend to the general council whether a qualification should be recognised.

While it is envisaged that judgment on the adequacy of overseas qualifications would normally be made on the basis of information supplied by the institution rather than by means of an overseas visit, clause 12 was amended in Committee to remove the previous limitation restricting the scope of those visits to those institutions in the United Kingdom.

Amendment No. 16 provides an osteopath making an application to the health committee for a conditions of practice or suspension order, made under clause 23, to be reviewed, with the right to a hearing. As we have already discussed this morning, the health committee will form an important part of the statutory scheme's fitness-to-practise machinery. Its function is to investigate allegations made against an osteopath that his or her ability to practise is seriously impaired because of physical or mental health and consequently poses a threat to the safety and well-being of his or her patients.

Unlike its sister committee, the professional conduct committee, the health committee's role is not disciplinary. Instead, it ensures that proper and adequate safeguards are provided for patients. For that reason, the health committee will be required to ensure that any action that it takes in terms of suspending an osteopath's registration or imposing conditions on his or her continued practice has to be proportional to the risk that he or she is considered to represent to his or her patients. As the committee's function is not disciplinary, it will have no powers of erasure.

The Bill also makes provision to ensure that the osteopath is provided with the full details of the allegation made against him or her and given the opportunity to state his or her case at a hearing at which he or her-- sorry, he or she--may be legally represented if he or she should so chooses. I think that I shall just stick to "he" as it will be more simple- -although I may be picked up by my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland).

Sir Nicholas Bonsor : My hon. Friend will note that, despite the best efforts of the feminists, "he" still includes "she" for the purposes of legal definition.

Mr. Moss : I am extremely grateful to my hon. Friend for his direction.

Lady Olga Maitland : May I reassure my hon. Friend that I have no feminist angst about the use of "he" or "she"? I do not believe in butchering the English language, and think that it is appropriate at times to use the generic term. "He" will suffice very nicely here.

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Mr. Moss : The Bill also makes provision to ensure that the osteopath is provided with full details of the allegation against him and is given an opportunity to state his case at a hearing, at which he may be legally represented if he so chooses, as well as the right of appeal to the appeal tribunal against decisions of the health committee. The Bill also provides an opportunity for the osteopath to make an application to the health committee once a year for the order made against him to be reviewed. As drafted, the Bill does not provide the osteopath with an opportunity to put his case at a hearing before the health committee comes to a decision on such an application.

10.30 am

It has never been our intention to deprive the osteopath of this opportunity. Such an intention would run contrary to the spirit of natural justice, one of the key principles on which the scheme is to be founded. The amendment therefore extends the practitioner' rights to a hearing to include such applications, thereby ensuring that the workings of the health committee will be open and fair, in theory and in practice.

Mr. Quentin Davies : Before my hon. Friend leaves the subject, will he give the House some examples of the sort of offences for which he considers removal from the register appropriate? Does he believe that it is the likely intention of the council--I say "likely", because it does not yet exist--to incorporate the sort of moral and non-clinical offences that the BMA has in the past considered grounds for disbarring doctors?

Mr. Moss : We are talking about the health committee at the moment. I have already said that it is not a disciplinary body--it has no powers of erasure from the register. The other "fitness to practise" committees, particularly the professional conduct committee, have powers to erase from the register if, at a hearing, an osteopath is found to have broken the rules. He can therefore be removed from the register. He can reapply at some stage in the future, but conditions may be set governing the standards of proficiency that he needs to meet to re-enter the register.

Amendments Nos. 26 and 27 provide me with an opportunity to remind the House of the important role that the Privy Council will play in the operation of the statutory scheme. In keeping with the other statutory schemes governing health professions, the work of the General Osteopathic Council and its four statutory committees will be overseen by the Privy Council. One of the Privy Council's key functions will be to approve the rules drawn up by the general council.

These rules will cover the entire range of the general council's responsibilities, including registration, post-registration training and the procedural rules of the four statutory committees. When we come to look at the schedule, especially the provisions for establishing the first General Osteopathic Council, we shall see other ways in which the Privy Council will be involved in the scheme.

Clause 33 provides for the Privy Council to be granted default powers to enable it to direct the General Osteopathic Council to perform any function under the Act that the Privy Council considers the general council should have done but has failed to do. If the general council refused to respond to this direction, the Privy

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Council would be empowered to step in and take over the functions of the general council and do anything that the latter could have done under the Act.

The Privy Council possesses default powers similar to those under the statutory schemes of other health professions. To set these key provisions in context, I should add that there are no known cases of the Privy Council having had to exercise its default powers in relation to a statutory scheme. Although the osteopaths can take pride in being first in respect of a number of new ideas in the area of statutory regulation, I am confident that this is one first which they have no intention of trying to achieve.

Mr. John Bowis (Battersea) : I do not intend to enter the discussion of "he" and "she". I am happy to accept the learned definition offered by my hon. Friend the Member for Upminster (Sir N. Bonsor). I have always believed that "she who must be obeyed" goes back to Rider Haggard, reiterated by Bernard Shaw in "Getting Married"--but for today we will stick to the legal definition. I want to ask for some reassurance and, I hope, support from my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss). Unlike my hon. Friend the Member for Stamford and Spalding (Mr. Davies), I have no parental examples to offer, but some of my constituents are training to become osteopaths, and they have asked me about the recognition of qualifications with particular reference to training grants.

The British School of Osteopathy, which I imagine offers the sort of qualifications to which the amendments refer, attracts students from around the country. Those students receive grants from local education authorities, but not full grants. The fees alone are about £5,000, but my constituents get grants of between £600 and £700, leaving them a great deal of money to find so that they can qualify and met the high standards which the Bill rightly seeks to establish.

I hope that my hon. Friend has managed to obtain reassurances from the Government on this score. The issue partly comes under the responsibilities of the Department for Education and certain other Departments oognised under the new law and that mandatory awards will be given for them.

Lady Olga Maitland : I support this group of amendments and I wish to draw attention to the importance of ensuring that overseas applicants to join the osteopathic profession maintain our standards of professionalism. It has become abundantly evident that there is a wide variation in training standards. A properly qualified osteopath has to undergo four years' training, which hardly compares with the gentleman who decides to set himself up with no experience but with a sign outside the door. We do not want to return to the days when a dentist's sole claim to expertise rested on the fact that he pulled teeth.

Professional standards are important. Those with overseas experience may well reach our standards, but we need to be certain that they conform to the rigorous criteria to be imposed by the newly formed osteopathic governing bodies.

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