Health, Social Care and Sport Committee [Draft]

Meeting date: Tuesday, May 21, 2024

Official Report 823KB pdf

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Subordinate Legislation

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National Health Service (Scotland) Act 1978 (Independent Health Care) Modification Order 2024 [Draft]

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Healthcare Improvement Scotland (Inspections) Amendment Regulations 2024 [Draft]

Our third agenda item is consideration of two affirmative instruments.

The first instrument is the draft National Health Service (Scotland) Act 1978 (Independent Health Care) Modification Order 2024. The purpose of the instrument is to enable Healthcare Improvement Scotland to regulate independent clinics where services are provided by pharmacists and pharmacy technicians; to amend the definition of “independent medical agency” to cover services that are provided by dental practitioners, registered nurses, registered midwives, dental care professionals, pharmacists and pharmacy technicians, which will include wholly online services in Scotland; and to enable Healthcare Improvement Scotland to cancel the registration of independent healthcare services that fail to pay their continuation fees.

The second instrument is the draft Healthcare Improvement Scotland (Inspections) Amendment Regulations 2024. The purpose of the instrument is to allow inspectors who are authorised by Healthcare Improvement Scotland under section 10K of the National Health Service Scotland Act 1978 to inspect medical records. The policy note further states that the current list of professions restricts who HIS is able to draw upon to inspect medical records as part of its inspections. Currently, the ability to inspect medical records as part of inspections that are undertaken by HIS is restricted to medical practitioners, registered nurses, pharmacists and registered dentists.

The Delegated Powers and Law Reform Committee considered the instruments at its meeting on 7 May 2024 and made no recommendations.

Today, we will have an evidence session with the Cabinet Secretary for Health and Social Care and supporting officials on both instruments. Once we have had all our questions answered, we will proceed to a formal debate on the motions.

I welcome to the committee Neil Gray, Cabinet Secretary for Health and Social Care. He is accompanied by Scottish Government officials. Lorraine Alcock is team lead in safety, openness and learning; Kirndeep Kaur is a solicitor in the legal directorate; and Robert Law is a senior policy manager in safety, openness and learning.

I invite the cabinet secretary to make a brief opening statement.

I appreciate the opportunity to speak to the two Scottish statutory instruments relating to the regulation of independent healthcare in Scotland.

First, the inspections regulations will allow any suitably trained inspector who is authorised by Healthcare Improvement Scotland to inspect medical records. Currently, the regulations state that Healthcare Improvement Scotland can draw on medical practitioners, registered nurses, pharmacists, and registered dentists to inspect medical records during an inspection. That change will enable Healthcare Improvement Scotland to be more flexible in its approach to conducting independent healthcare service inspections.

The second SSI is the modification order, which has three distinct purposes. First, it will widen the definition of an independent clinic, so that Healthcare Improvement Scotland will regulate clinics where services are provided by pharmacists and pharmacy technicians. That will not include pharmacies that are already regulated by the General Pharmaceutical Council or services that are provided under NHS contracts.

Secondly, the order will amend the definition of “independent medical agency”. That provision will now include services that are provided by dental practitioners, registered nurses, registered midwives, dental care professionals, pharmacists and pharmacy technicians. The updated definition will also regulate wholly online services that are based in Scotland. I believe that to be a particularly urgent and important change.

The final purpose of the modification order is to enable Healthcare Improvement Scotland to cancel the registration of independent healthcare services that fail to pay their continuation fees. The inability of HIS to remove services from its register means that, at present, services that repeatedly fail to pay their fees can continue to operate in Scotland. Making that change is likely to have a positive impact on the willingness of providers to pay the fees that they owe and the provision is intended to be used as a last resort.

We have engaged with stakeholders and the wider public throughout the development of the modification order and our public consultation received support for the changes.

The SSIs that are being considered today will ensure that HIS continues to have the power to effectively regulate independent healthcare providers in this growing sector.

Thank you for that statement, cabinet secretary. Sandesh Gulhane has a question.

I refer members to my entry in the register of members’ interests, which states that I am a practising GP.

I welcome HIS being able to inspect to a greater extent than it is doing at the moment and to have some more powers in that regard, because, ultimately, we want healthcare to be provided in a safe and efficient manner. However, I point out that a strand of healthcare is being provided by non-registered doctors and nurses—in fact, by beauticians. I am talking about non-surgical procedures such as fillers.

Those procedures can have significant side effects and, when they go wrong, it costs the NHS a lot of money to rectify them, but there is no regulation and HIS has no ability to go and look at sites to see whether they are safe and clean. Ultimately, those people are doing what I consider to be medical interventions. How can we ensure that that area is included in the legislation?

The orders do not cover that area, but we are looking to introduce legislation that would cover it, because I share Dr Gulhane’s concern about it.

The orders will widen the scope of regulations that are already in place, but we are looking to expand what is covered through legislation, as my colleague, Jenni Minto, has already outlined to Parliament.

The Scottish cosmetic interventions expert group’s phase 2 recommendations include the introduction of legislation to regulate the administration of non-surgical cosmetic procedures. Following the 2020 consultation on the regulation of those procedures, our initial priority, from a clinical safety perspective, was to consider regulating the administration of dermal fillers. As we are aware, if they are administered incorrectly, they often cause long-term damage that can be reversed or limited only by the urgent administration of specific prescription-only medication.

Because of the number of non-surgical cosmetic procedures that are now available, we are working with our stakeholders to consider the potential scope of further regulation that is needed within the area. The stakeholders include: healthcare professionals who represent the British College of Aesthetic Medicine and the British Association of Cosmetic Nurses; hair and beauty industry representatives; environmental health officers; and HIS. Their input is hugely valued.

It is also worth noting that part of the phase 3 recommendations of the interventions expert group was to consider independent services that are provided by other healthcare professionals who are not currently included in the “independent clinic” definition. Our work today to add pharmacists and pharmacy technicians is an important step forward, but I absolutely share Dr Gulhane’s concern. We are working to expand some of that regulation to take in the areas of concern that he set out.

Cabinet secretary, will you look at ensuring that such procedures can done only by people who are already registered, such as doctors and nurses?

That goes beyond what is in the orders that are before us today, but I would be happy to have a further conversation with Dr Gulhane about the on-going work that we are doing on expanding regulation of cosmetic procedures, including the detail that Dr Gulhane is looking for, which is part of the consultation and discussions that we are having with stakeholders.

Other members of the committee would also find that detail helpful.

I am happy to share that with the committee.

I have had no indication that anyone else wishes to ask a question on the instruments, so we move to item 4, which is the formal debate on the instruments on which we have just taken evidence. I remind the committee that officials may not speak during the debate. I ask the cabinet secretary to speak to and move motions S6M-13020 and S6M-13021.

I have nothing further to add than what was discussed in the debate.

I move,

That the Health, Social Care and Sport Committee recommends that the National Health Service (Scotland) Act 1978 (Independent Health Care) Modification Order 2024 be approved.

That the Health, Social Care and Sport Committee recommends that the Healthcare Improvement Scotland (Inspections) Amendment Regulations 2024 [draft] be approved.

Thank you. Sandesh Gulhane wishes to speak.

Although I support the motions that are before us, as I said in my questions, it is important that we understand that, because some people who carry out procedures are not in one of the groups that are being regulated, we have almost a cowboy market, where anyone can do whatever they want with no checks or balances. Patients can suffer significant side effects and significant costs are incurred by the NHS. Therefore, although I am happy that we are seeing some movement from the cabinet secretary, I feel that it is a shame that nothing has been put in place since the 2020 consultation to protect citizens who are looking to get things such as fillers done.

I am happy to reiterate what I set out earlier: I share Dr Gulhane’s concern and the work is on-going. The regulations take us a step forward, but it is imperative that we continue our work to widen regulation of that area. I am happy to come back to the committee with more information on the on-going work on that.

Motions agreed to,

That the Health, Social Care and Sport Committee recommends that the National Health Service (Scotland) Act 1978 (Independent Health Care) Modification Order 2024 be approved.

That the Health, Social Care and Sport Committee recommends that the Healthcare Improvement Scotland (Inspections) Amendment Regulations 2024 [draft] be approved.

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Healthcare Improvement Scotland (Fees) Regulations 2024 (SSI 2024/130)

The next item on our agenda is consideration of one negative instrument. The purpose of the instrument is to enable Healthcare Improvement Scotland to prescribe the maximum fees that it may impose in respect of independent medical agencies, to raise the maximum fees that may be imposed on all independent healthcare services in respect of applications for registration or cancelling of registration of independent healthcare services, the annual continuation of any such registration, and applications for the variation or removal of a condition of registration.

The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 7 May 2024 and made no recommendations. No motion to annul has been lodged.

Given that no member has indicated that they wish to comment, I propose that the committee make no recommendation in relation to the instrument. Is that agreed?

Members indicated agreement.

I suspend the meeting to allow for a change of witnesses.

10:41 Meeting suspended.  

11:04 On resuming—