Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 185, in page 28, line 32, at end

insert—

`(aa) medical practitioner providing personal medical services.'.

Mr John Maxton (Glasgow, Cathcart, Labour)

With this it will be convenient to take amendment no. 186, in page 28, line 34, at end insert—

`(cc) dental practitioner providing personal dental services.'.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Clause 28 establishes the Family Health Services Appeal Authority as an independent body, whereas it is currently set up as a special health authority. Most of the issues surrounding this provision would be best dealt with in a short clause stand part debate, so I shall focus my remarks narrowly on the amendments.

Amendments Nos. 185 and 186 seek to insert into the new schedule 9A to the 1977 Act two additional classes of member that must be included—a medical practitioner providing personal medical services and a dental practitioner providing personal dental services. Much of what my hon. Friend the Member for New Forest, West said in the previous debate is applicable again here. Whether we like it or not, it is clear that personal medical services will represent a growing share of family practitioner services. It seems rather inappropriate that the FHSAA that will be dealing with appeals in respect of GMS and PMS providers should have a statutory inclusion of a GMS or GDS provider, but no statutory inclusion of a PMS or PDS provider. We would all be wary of creating an unwieldy body.

Amendment No. 34, which we will discuss next, connects with the discussion because it deals with the overall size of a body if a percentage of its membership were laypeople. There is no robust reason for having statutory GMS and GBS representation but no statutory PMS and PDS representation. If, as the hon. Member for Bristol, North-West (Dr. Naysmith) said, that is not to send out the signal that PMS and PDS are somehow inferior cousins, the Minister must explain why those organisations are not to be represented on the FHSAA.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

There is no good reason why they should not be, and we will address that in amendments tabled on Report.

Members of the Committee who have noticed that there are fewer Government amendments to the clause than to earlier ones may have drawn the erroneous conclusion that that part of the Bill was almost perfect. As I said in my letter to members of the Committee a few days ago, amendments will be brought forward on Report and some will address the issue raised by the hon. Gentleman. I will give my best indication of the other areas that need further attention in the stand part debate.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

As ever, I am grateful to the Minister for that indication. It is always nicer when he accepts our amendments, but I know that he specialises in giving credits on Report so we will live with that as a second best option. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

I beg to move amendment No. 34, in page 28, line 39, at end insert

`such number being equivalent to at least fifty per cent of the total membership of the FHSAA'.

The spirit of the amendment is the same as that of the amendments to the previous group. I am always slightly worried about setting out such prescriptions as specifying that a body must comprise six members but not specifying the size of an overall body. We could, for example, have a tribunal of seven—consisting of one layperson, one legally qualified chairman and five professionals—or a body of 40, but neither option would be satisfactory. Our probing amendment would require an appropriate lay input, which we consider should be slightly more than 50 per cent. because the body represents patients' interests. A reasonable solution would be to have 50 per cent. lay and 50 per cent. professional membership, with a lay legally qualified chairman.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Does the hon. Gentleman mean lay members in the everyday sense or simply people who are not providing medical, ophthalmic, dental or pharmaceutical services? Given that the Lord Chancellor will appoint the body, it is possible that along with doctors, ophthalmologists, dentists and pharmacists, a smattering of lawyers could be involved.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

If the Lord Chancellor is involved, they might all be lawyers. Under the definition that we are discussing, the members would be lay. I hope that the Minister will come back to that issue on Report because it would be unsatisfactory not to get a flavour of the tribunal and know, for example, whether it will represent patient groups or interests.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

We shall certainly consider the amendment in drawing up those to table on Report. Because the measure is established under the legislation on tribunals, the Lord Chancellor—rather than us—will determine some of the key issues. We expect that a hearing, which is perhaps the critical part of the exercise, would typically consist of a panel of three members: a legal chair, a lay member and a medical member. As I understand it, the amendment is concerned with the size of membership from which such panels can be drawn. In drafting amendments on Report, we will want to consider the appropriate size for a workable body. Strong lay representation will certainly be required because there is a strong lay element in those panels that will undertake hearings.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister referred to legislation on tribunals under which the tribunal will be established. I wonder whether he could clarify that statement, because my understanding is that the tribunal will be established by this clause, not by reference to any other legislation on tribunals.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

That is right. However, it will be supervised by the Council on Tribunals. The tribunal will be distinct from bodies—special health authorities, for example—in which the Secretary of State has an involvement, in that the Lord Chancellor will play a part in proceedings. If the hon. Gentleman wants legal chapter and verse, it might be necessary to come back to him on Report, but suffice it to say that the distinction to which I have referred is an important one.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister has told us that, in effect, the tribunal will be governed by procedures laid down by the Council on Tribunals. I am not familiar with that body, and nothing in the Bill suggests that the tribunal and its practices will be subject to regulation by such a body. How are we to understand the relationship between the FHSAA and the Council on Tribunals?

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I probably need to come back to the hon. Gentleman in due course, so that I can ensure that I get the description and legal requirements absolutely right. However, I should point out that we want the authority to be reconstituted with members appointed by the Lord Chancellor, rather than the Secretary of State. That is one of the guarantees of independence that we are seeking to establish. The Lord Chancellor, in consultation with the Secretary of State, will also determine proposals for the constitution of the authority.

The hon. Gentleman asked further questions about the legal basis, and I have been advised just in the nick of time that the FHSAA will be a tribunal according to the terms of the Tribunals and Inquiries Act 1992. Under the provisions in this Bill, the Lord Chancellor will make the rules.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am not seeking to be difficult, but given that the FHSAA is not actually called a tribunal, and given that the clause does not state that the FHSAA shall be a tribunal according to the 1992 Act, how will statutory effect be given to its status as a tribunal? If the Minister does not want to answer that question now, perhaps he might do so during the stand part debate.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I am familiar with this important point, but given that my notes do not assist me in that regard, it would probably be more useful for me to write to the hon. Gentleman and other members of the Committee, setting out the relationship between the FHSAA and the 1992 Act.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

I would value your guidance, Mr. Maxton, as to whether we will have a stand part debate.

Mr John Maxton (Glasgow, Cathcart, Labour)

There is no reason why we should not.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

I am happy, therefore, to let the matter rest for the time being and return to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I beg to move amendment No. 113, in page 29, line 10, at end insert—

`( ) In the National Health Service (Primary Care) Act 1997—

(a) in section 22 (supplementary regulations about personal medical or dental services), in the section 28E to be inserted into the 1977 Act, in subsection (7)(e), for ``Tribunal constituted under section 46'' there shall be substituted ``Family Health Services Appeal Authority constituted under section 49N''; and

(b) in Schedule 1 (preferential treatment on transferring to medical lists), in paragraph 9(a), for ``Tribunal constituted under section 46'' there shall be substituted ``Family Health Services Appeal Authority constituted under section 49N''.'.

Mr John Maxton (Glasgow, Cathcart, Labour)

With this it will be convenient to discuss Government amendments Nos. 114 and 115.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

The amendment is a straightforward consequential change on the abolition of the NHS tribunal.

Under piloting arrangements, representations can be made to the NHS tribunal when a doctor holding a preferential right of return applies to rejoin the health authority's medical list from personal medical services. That right of return can be overruled if the tribunal considers that the inclusion of the doctor's name would be prejudicial to the efficiency of general medical services provided in the area. The provision allows any serious problems that emerge during someone's performance of PMS to be taken into account at the stage of re-entering the GMS medical list. The Primary Care Act 1997 makes provision for conferring on the tribunal specific powers of disqualification—for example, to overrule a doctor's preferential right to return under a permanent PMS regime.

Clause 19 abolishes the NHS tribunal and clause 28 reconstitutes the FHSAA as its replacement. The amendments simply reassign the powers to the new body as successor to the tribunal and thus maintain comparability with the present arrangements and provisions.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I should like to ask the Minister a few questions.

Although the explanatory notes make great play of the FHSAA being reconstituted as an independent body, not a special health authority, independence is a relative term, and that interpretation depends on the belief that the Lord Chancellor is a more independent person than the Secretary of State for Health. Once members of the body have been appointed by the Lord Chancellor, they will be paid by the Secretary of State as he thinks fit. Such a situation is always dangerous—as we all know, it is difficult to be genuinely independent from the person who determines how much you are to be paid, if at all. It is fair to say that the FHSAA will be only relatively independent.

How will the existing FHSAA, which was presumably established as a special health authority by a statutory instrument, be wound up? The clause creates the new FHSAA as an independent body, but does not provide for the winding up of the existing FHSAA.

I am pleased and relieved to see that the rules governing the procedures of the FHSAA provide that appeals will be conducted through hearings, not merely written representations. That takes me back to a debate on the Care Standards Act 2000, in which we argued that when a person's livelihood is threatened, they should have the right of access to a hearing, not be limited to making representations in writing. I have to say that our argument was not accepted, but I am glad that the provision is in the Bill.

The Minister said, in response to an intervention by the hon. Member for Isle of Wight, that the FHSAA is essentially a pool from which panels for hearings are drawn, as is normal in such circumstances. Will it be based in London and sit in London, or will regional panels sit around the country?

I turn to a question that I have meant to ask the Minister on several occasions during our proceedings—indeed, I have stood up in order to do so, then forgotten what I intended to ask. In order for the Committee to conceptualise the volume of business with which the FHSAA is likely to deal, will he give us a flavour of the anticipated number of refusals? In other words, in how many cases is there likely to be at least the possibility of an appeal to the FHSAA? If there will be only a couple of dozen cases a year, sitting in London as a single panel would be acceptable, but if there will be dozens or hundreds arising in each health authority district, a regional panel arrangement would be more efficient and economic.

Perhaps the Minister can also shed some light on the peculiar terminology in paragraph 4(b) of proposed new schedule 9A to the 1977 Act, which states that the president

may be removed from office by the Lord Chancellor on grounds of incapacity or misbehaviour.

We see all sorts of words in legislation, but ``misbehaviour'' is not one that I am familiar with in the context of health legislation. I wonder what ``misbehaviour'' entails? It conjures up images of the schoolroom. Will he explain why that particular word has been used and what sort of behaviour it is intended to encompass?

During the stand part debate, will the Minister throw a little more light on the overall size of the body? In response to the previous debate, he referred to the FHSAA as a pool. That was intended to reassure the hon. Member for Isle of Wight about lay representation, but it could have the opposite effect. If it were to have 50 members, then the fact that only one medical practitioner provides general medical services will give rise to the opposite concern. I accept that the Minister will not want to be specific, but will he give us an idea of the scale that he has in mind?

Finally, could the Minister satisfy my curiosity about the apparent over-representation in the present constitution of the authority of ophthalmology? What is the distinction between medical practitioners providing general ophthalmic surgeons and ophthalmic opticians providing general ophthalmic surgeons? I had not appreciated that substantial numbers of both provide general ophthalmic services. It means that there are two optical people, one dentist, one medic and one pharmaceutical person in the proposed constitution of the authority. For my enhanced knowledge and future benefit, will he explain how that works?

Dr Peter Brand (Isle of Wight, Liberal Democrat)

The clause is thin and inadequate, and it has become more confusing now that we have heard from the Minister that the authority is not to be set up under the Bill, but plugs into an existing set of regulations relating to tribunal services.

I shall echo the comments made by the hon. Member for Runnymede and Weybridge. We have medical practitioners providing general ophthalmic services because they are on a list. In fact, they are representative of local medical committees, which is a category that is entitled to join the list. However, in the modern world, someone providing services under a supplementary list should also be represented. I am unhappy that, despite the throwaway line from the Minister, this is only going to be a pool. What is the authority going to do? Will it make policy? Will it comment on the regulations, which he will promulgate, under which its judgments must be made? The Medical Practices Committee had quite an active role in some of the functions to be taken over, as does the body that will be abolished and reconstituted.

I would be happier if the Government decided not to include the clause, as we shall clearly have to return to it. I would have thought that primary legislation would have to specify that the appeals authority be governed by the tribunal regulations. There should be some flavour of the total numbers. Will only members of the authority be able to sit on panels convened by it? Will it have strategic powers, or will it merely service mini-appeal panels around the country? The Minister has left himself a big job in the way of revision, and it is sad that we will not be able to see the direction in which he is going on the appeal authority until the Bill is considered on Report.

Many of the issues that we have discussed at the past few sittings depend on a fair, open and accessible appeals authority. Judging from the Bill, the authority does not look very open, so it is difficult to assess whether it will be fair to either the practitioner or the community.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

Let me attempt to address some of the issues. We have so far spoken to only a small amendment, so we should outline our proposals for the operation of the reconstituted FHSAA. I will start with our reasons for the proposed reconstitution.

We announced in July that we wanted an appeal right to the FHSAA for contractors who had been removed from health authority lists. As a special health authority with members appointed by the Secretary of State, we feared that the existing FHSAA would not be considered sufficiently independent to satisfy the requirements of the European convention on human rights. I do not believe that there has ever been evidence under this or previous Govts of Secretaries of State interfering with the FHSAA, but the legal protection that may now be required under the convention is not provided for.

In giving the body new status, we are taking existing provision further. The Bill makes it clear that we want to reconstitute the appeals authority, with members appointed by the Lord Chancellor. That is the first distinct difference from the present FHSAA, the members of which are appointed by the Secretary of State.

The new body will continue to hear the appeals delegated to it by the Secretary of State, which include disciplinary committee decisions if a GP is in breach of terms of service as a result of, say, failing to provide out-of-hours services. Also included would be appeals against decisions of health authorities on fees, and appeals relating to the provision of pharmaceutical services. Those are the existing functions of the FHSAA that will transfer to the reconstituted body.

The second function is in relation to determining appeals that arise from the clauses that we have debated today. Examples would include failure to admit a contractor or a provider of PMS or PDS, failure to remove a person from a health authority list, and the refusal of a health authority to review a contingent removal decision. An additional important function is the ability to determine that a practitioner who has been removed from one health authority list should be removed from all health authority lists or prevented from joining other health authorities. Practitioners will have a right of appeal against FHSAA decisions, but only to the High Court and only on a point of law. That is consistent with other appeal bodies that come under the supervision of the Council on Tribunals.

I may previously have inadvertently misled the Committee. The Bill is the mechanism by which the body that we are considering will be established. The Council on Tribunals oversees the workings of tribunals; we intend that the appeals authority will be included. The Council on Tribunals issues an annual report on the work of the tribunals with which it is concerned.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Will that be a statutory or an extra-statutory role?

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I offered earlier to write to the hon. Gentleman to clarify the exact relationship. I do not want to mislead the Committee; a significant statement about the independence of the relevant body is involved.

Our amendments will set out proposals for the constitution of the appeals authority, including provisions for the appointment of members and the number of members needed to ensure fairness and efficiency. Those matters will be determined by the Lord Chancellor in consultation with the Secretary of State. The intention is that the authority should be headed by a legally qualified president and deputy presidents and that the panel of members should include representatives of the contractor professions, lay members and legal lay members. The exact number of lay members is a matter for discussion. It seems reasonable to expect a similar number to the number of professional members identified in the current draft. We shall want to return to that question. It is a fair point that with 100 lay members the body would look very different. A similar order of magnitude is a reasonable way to describe our current intentions.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

May we have an assurance that total numbers will be set out in primary legislation? It appears at present that although we might specify certain matters in the Bill, much that could affect the workings of the clause is being left to the Lord Chancellor, of whose thinking we have no inkling.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

We must be careful about making such a promise at the moment. We want at this stage to avoid doing anything that will constrain the proper discretion of the Lord Chancellor, so as to compromise the independence that we want to bring about. In addition, it is probably undesirable to put exact numbers of members in the Bill, in case circumstances should change in future. It should be possible to provide the hon. Gentleman by Report with a clearer idea of the overall shape of the body as we expect it to be established initially.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister really must not plead the need to protect the proper independence of the Lord Chancellor in making the relevant decision as a reason for not answering, when the Bill itself states that the number specified by the Lord Chancellor shall have the consent of the Secretary of State. Clearly the Secretary of State, on whose behalf the Minister is speaking to the Committee, has a power of veto.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

One issue that we must consider between now and Report is whether the wording of paragraph 2 of the proposed new schedule is appropriate.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

This may be a point of order, Mr. Maxton. I take it that I am right. The Minister sighs, but we, the humble members of the Committee, can consider only the Bill that the Government have presented. We cannot be expected to second-guess what the Government might be thinking about doing by Report. The whole point of the Committee is to scrutinise the Bill. It is disingenuous of the Government to have in mind a raft of amendments that they do not table in Committee, and to wait until the effective end of scrutiny and table them on Report.

Mr. Denham rose—

Dr Peter Brand (Isle of Wight, Liberal Democrat)

On a point of order, Mr. Maxton. If the clause is not agreed, can the Minister table an alternative clause later in the Committee's proceedings?

Mr John Maxton (Glasgow, Cathcart, Labour)

Of course he can.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

Having indicated last week that the Government would need to table amendments on Report, it might help the Committee to know how we want the authority to operate. It will be for the Lord Chancellor to determine the qualifications and experience that members of the FHSAA must possess. The constitution of panels to hear cases will be at the discretion of the president, as will some of the operational matters that have been raised.

I was asked about the location of the authority. I would prefer that the staff remain in Harrogate; we would not want to lose the expertise of those staff who now work for the FHSAA. It will be for the authority itself to determine whether there should be regional panels, and it would depend on the case load. It is difficult to put an exact figure on the number of cases that might be brought forward, but we expect the president's job to be part-time father than full-time.

As for the other bodies that will come under the supervision of the Council on Tribunals, the Lord Chancellor will need to lay down certain rules on the functions of the appeals authority. Amendments will be tabled to make provision for that. We shall need to table amendments to require the appeals authority to prepare an annual report, and to allow regulations to be made on the procedures to be followed on the receipt of an appeal. Those amendments will make a significant number of changes, and I regret that the clause is not as fully developed as I would like. None the less, I believe that it is sufficiently correct for me to move that it stand part.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

In view of what the Minister said, the Department of Health might like to think next time it presents a Bill about making use of the pre-legislative scrutiny arrangements introduced by the Government. It seems that health Bills need many Government amendments; perhaps it happens with other Bills, too.

The Minister has not replied to several specific questions. I remind him of them. How and by what method will the special health authority be disbanded, if that is the case? What are we to understand by the term ``misbehaviour'' in paragraph 4(b) of proposed new schedule 9A? Will the Minister explain about medical practitioners and ophthalmic opticians providing general ophthalmic services? I certainly do not understand that matter, and I would appreciate an explanation.

I have not told the Minister—although I have told his colleague the Minister of State, Department of Health, the hon. Member for Barrow and Furness (Mr. Hutton)—how pleased I am that he has decided to err on the side of caution in ensuring that the statement made by the Secretary of State that the Bill is compliant with the Human Rights Act 1998 is correct.

In my constituency, there is a card-carrying member of the Labour party, who happens to be a professor of law. There are not many card-carrying members of the Labour party in my constituency, but he is a very nice chap, and he is about to publish a book that covers the Human Rights Act. One part of the book, which will be of great interest to Ministers, contains the opinion that if a Minister makes such statement on a Bill, the Bill becomes law and the courts subsequently find that the Act is not compliant, the Minister will be required to resign, having materially misled Parliament. Perhaps the Minister will pass on that snippet of information to the Secretary of State. I am sure that my constituent, being a card-carrying member of the Labour party, will ensure that Government Members receive copies of the book when it is published. I am delighted that the Minister has decided to err on the side of caution.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I am always interested in the opinions of counsel who none the less always end up losing in court.

Medical practitioners who provide general optical services are not ophthalmic opticians, but in many cases they are not engaged in providing general medical services. If they are not specifically mentioned, they will not be represented.

The FHSAA will be wound up by order under existing legislation.

The reason for using the word ``misbehaviour'' is that that term is used in getting rid of judges.

Question put and agreed to.

Clause 28, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Jamieson.]

Adjourned accordingly at twenty-six minutes past Six o'clock till Tuesday 30 January at half-past Ten o'clock.