Nursing and Midwifery (Amendment) Order 2017

Lord O'Shaughnessy Excerpts

Tuesday 28th February 2017 Lords Chamber

Moved by

[Lord O'Shaughnessy]

That the draft Order laid before the House on 25 January be approved.

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Health (Lord O'Shaughnessy) (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his interest in this matter, and although naturally I am disappointed by his amendment to the Motion, I will use the opportunity afforded by it to aim to reassure him and all noble Lords that the proposed changes in this order are consistent with the Government’s commitment to strengthening the midwifery profession while also ensuring public protection. In addition, I am aware that the Secondary Legislation Scrutiny Committee has brought this order to the special attention of the House, and I will address the concerns of the committee in my remarks.

I know that the House will agree that it is vital for all women to be able to give birth in a safe, high-quality environment. This Government are committed to ensuring maternity services are the best and safest they can be. However, it is also true that things can and do go wrong, often with devastating impacts on mothers and babies but also on husbands, partners, parents, siblings and extended family members. Any good system of policy and regulation must promote best practice while also preparing to respond to mistakes when they happen.

In October 2016, Safer Maternity Care was published. It set out an action plan for the Government’s vision to make NHS maternity services some of the safest in the world and to achieve our national ambition to halve, by 2030, the rates of stillbirths, neonatal deaths and brain injuries that occur during or soon after birth and maternal deaths, with an interim aim of a reduction of 20% by 2020. Midwives are key to achieving this ambition. Because of this Government’s actions, there are more than 2,100 additional full-time equivalent midwives on our maternity units since 2010, and a further 6,300 are in training.

Midwives do a critically important job caring for mothers and babies and I pay tribute to the work that they do, which my family has been privileged to benefit from. However, when mistakes are made, it is right that they must be properly investigated. This order is before noble Lords partly in response to concerns raised during investigations into systematic failures in the care of mothers and babies at Morecambe Bay NHS Foundation Trust. As noble Lords know, following the completion of a number of investigations into complaints from families of those affected by the tragic events at Morecambe Bay, the Parliamentary and Health Service Ombudsman highlighted that,

“the midwifery supervision and regulatory arrangements at the local level failed to identify poor midwifery practice”.

A subsequent report by the King’s Fund described the system of local investigations as a “sub-FTP”—fitness-to-practise—“investigatory process”, which,

“causes confusion … and can result in a lack of clarity for providers over their responsibility”.

Similar concerns were raised in Dr Bill Kirkup’s Morecambe Bay investigation report, which referenced the,

“remarkable conflicts of interest inherent in a single individual combining the roles of risk manager, supervisor of midwives, senior midwife and staff-side representative”.

The report also stated that,

“the supervisory system as applied in Morecambe Bay … lacked objectivity and failed repeatedly to identify the evident problems in the unit or alert others to them”.

All three reports that I have just quoted from recommended that urgent change was needed to ensure a clear separation between regulation and supervision of midwives.

--- Later in debate ---

[Lord O'Shaughnessy]

I thank noble Lords for an extremely high-quality and very well-informed debate on both this order and the amendment. I will do my best to deal with the many questions and important issues that were raised by noble Lords.

First, I welcome the welcome that this order has broadly received. As the noble Lord, Lord Willis, pointed out, the separation of the professional interest and regulatory functions is best practice; that is how we expect regulation to take place these days. Unfortunately, in Morecambe Bay that lack of separation was one of the contributing factors, and that obviously has been a spur to change. I also welcome the words of support for the fitness-to-practise changes, which I think will bring in a quicker, more flexible and more proportionate system.

I turn to some of the points made by the noble Lord, Lord Hunt. There is undoubtedly an issue about the workforce, as he pointed out. There has been an increase in the number of births, and more is being done both to recruit existing staff and to retain them. But at the heart of this are three issues. The first is the point about silos versus integrated care. Of course we all want integrated care; that is the direction of travel. At the same time, necessary changes are taking place to the regulatory structure to deliver the kind of separation and clarity that we also want to happen. The concern being raised is whether, in doing so, we will in some way change the status of the profession, if you like—not intentionally, but by virtue of the removal of various statutory arrangements and so on. I can understand why some might draw that conclusion, but it is clearly not the intention of what is happening here, and I hope to set out a few reasons why that is the case.

The proposed changes do not alter the status of midwifery as a distinct profession with its own standards. There will be no change to the protected title of midwife, and delivering a baby remains a protected function for a midwife or medical practitioner; it is incredibly important to set that out at the beginning. As the noble Lord, Lord Hunt, pointed out, there are various tiers of representation, if you like, below Chief Nursing Officer: head of maternity, NHS England regional heads, deputy heads and so on. I do not know the specific reason why that is called maternity, not midwifery. I imagine that it might be because of integrated care and because, although it might have midwifery as the major focus of it, it might also involve other aspects of the birthing arrangements. I shall certainly endeavour to find out and write to the noble Lord about it.

The other issues were around whether the profession is getting the attention and respect that it deserves and indeed is properly represented at the right levels and in the right bodies. There is a midwife on the NMC. That is not a statutory requirement but the council ensures that it happens. It is also fair to say that we have a Secretary of State who is taking the issue of maternity safety incredibly seriously. I mentioned the national ambition, but we also had the publication of Safer Maternity Care in October and I will come on to some of the issues raised by my noble friend Lady Cumberlege as well. A lot is going on to support the profession.

One important part of that is making sure that this new supervisory function takes place properly and replaces statutory supervision. I quite understand why noble Lords will be concerned that that should take place. While on the one hand we have all agreed that the separation of regulation and supervision needs to happen and that the order creates greater clarity, there must be something to replace the supervisory arrangements that we agree need to change.

I reassure noble Lords that the four countries in the UK have been working together since 2015 to take account of the new employer-led models of supervision. In England, the NHS has evaluated the model in seven pilot sites to inform the model and its implementation, and there has been an education programme. Those pilots began last November and will complete in March, so they are informing the arrangements that go on in England. In the other countries, systemic reviews of the new system are taking place, on slightly different timeframes in different countries. But I reassure noble Lords that that will be happening. Not only is there preparation for the new system, there will be reviews into its effectiveness. Given all the points noble Lords have made about our experiences in Morecambe Bay and elsewhere, it is clearly essential that that happens.

A reasonable question was asked by the noble Baroness, Lady Walmsley, and my noble friend Lady Cumberlege about whether midwifery issues would be properly dealt with by the NMC and whether it has the capacity to do so, given its past problems. It received a much more positive performance review from the Professional Standards Authority, which found improvements down the line. Clearly, there is still one outstanding issue resulting from Morecambe Bay, but it is now an improved regulator and we can have confidence that it will do the kind of job that we now ask it to do.

My noble friend Lady Cumberlege raised the issue of the right level of insurance for independent midwives. I know that is incredibly important for maternal choice. Insurance is clearly a hot topic at the moment, but I will certainly write to her and find out exactly what the regulator is doing to give proper guidance, because that must happen. She is quite right to raise the example of Sweden. We know that there is a lot more to be done to improve maternity services in this country. Change is going on. My noble friend also mentioned the consultation going on with regard to regulatory redress. There needs to be a change of culture so that it is less adversarial and less litigious, and designed to increase learning and bring that to bear much more quickly on the process. We are undertaking that set of reforms and I pay huge tribute to her for her work in making that happen. My noble friend asked a set of other questions and I will certainly write to her so that I can answer her properly if I have not done so in the answers I have given already.

I end by paying tribute to the profession itself. The noble Lord, Lord Willis, made an excellent point, which goes beyond the scope of the order but is important. There is more that midwives can—indeed, must—do if we are to have a properly integrated system. We all want a healthcare system that, in the end, involves a personalised pathway. Whatever your experience, whether you are an older person, a young person, a mother or whatever, you can have someone by your side, leading you through that experience. Clearly, many pregnant women will want that to be a midwife, so I absolutely take the point about integrating with health visitors and many others besides. I hope changes are going on. That is perhaps not a subject for debate tonight but for another time. On that basis, I ask the noble Lord, Lord Hunt, to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the Minister. I totally agree with the noble Baroness, Lady Walmsley, about the importance of the midwife being an integral part of the team. The noble Lord, Lord Willis, is right, as is the Minister, that one of the lessons of Morecambe Bay is the problem of different professions being completely unable to relate and talk to each other. Frankly, this is an issue that the health service suffers from and the Minister is right that, in a sense, it could be argued that the NMC is putting forward a more integrated approach to regulation. The risk is that, because of the disparity between the number of nurses and midwives—and we have often seen this before—integration could mean the marginalisation of certain people. This is the risk that we need to guard against—the unintended consequence.

The Minister has given a very good assurance that this matter will be kept under clear review; he emphasised that this would be a proper review and I very much welcome that. However, I still believe that, in the end, the answer to the question that he posed—“Are midwives around the right table?”—is that the experience of the health service is that they are never around the table at all. This is the problem. Whether the meetings are at board level of an English NHS trust, at the top level of the senior management team of a regional office of NHS Executive, at the NHS Executive itself, or at the department, they are never there. The big problem of how we get midwifery input at those top levels is one that we are still struggling with.

It is ironic that, having debated only two weeks ago the need for an approach to health regulation that covers all professions, we are now debating one profession. The noble Baroness, Lady Cumberlege, is absolutely right about this. I am indebted to the barrister Kenneth Hamer from Henderson Chambers who wrote to me after our last debate to point out that the Supreme Court is now using the Law Commission’s work on regulation to inform its own judgments. If there is any argument for the Government to produce a Bill in relation to unified health regulation very quickly, that is it.

On the loss of the midwifery supervisor, everyone agrees that the regulatory function needs to be separated off, and it is absolutely right that that is what the NMC should be concerned with. But there is concern about the loss of the supervisor at the local level. For me, the issue is safety. We know that NHS trusts are coming under huge pressure in relation to staffing levels from NHS Improvement because of pressure to reduce the deficit. The question, which I pose rhetorically, is who, given this pressure and given that midwifery does not have a voice at the board table, is going to defend the safety of the profession in terms of numbers when it comes to kind of hard decisions that are going to be made? That is my concern and frankly it has not been answered.

On the NMC’s performance, I remain of the view that the current chief executive has done a very good job trying to deal with the huge problems that she inherited. I hope that, whatever review is undertaken, it will not destabilise the NMC and that she will be given the time she needs to continue to make improvements.

The Minister said that he would exchange letters on the issue of independent midwives. I hope he will agree to go a little bit further and discuss this matter with his noble friend and the NMC. This issue has now been around for years, but it could clearly be sorted. A number of people are involved—the department, NHS England, the NMC and, I suspect, the NHS Litigation Authority—but if Ministers banged their heads together this would be sorted; that needs to happen. Frankly, even post the calamity of the 2012 Act, which has created such a discordant structure, Ministers can, in the end, determine something to happen here. That is what we need.

There is no question about it: I am not interested in silo professional behaviour or in whether a statutory committee is the right way to go forward. But I am convinced that the voice of midwifery needs to be heard at the highest level. I hope that this excellent debate—I am grateful to the Minister, too, for his response—has been helpful in just making that point. I shall not press my amendment to the Motion.