Clause 27 - Reference of disciplinary cases
NHS Reform and Health Care Professions Bill
9:45 am
Mr Oliver Heald (North East Hertfordshire, Conservative)
Clause 27 gives the council the right to refer a fitness to practise decision to the High Court, where the court would have the power to substitute its decision for that of the regulatory body, which is a controversial power. The Royal College of Nursing has sought assurances that cases against clinicians will continue to be heard using the criminal, rather than the civil, burden of proof. It points out that the impact of losing a licence to practise a profession is so serious that this standard of proof, which ensures that the professions retain their confidence in the regulatory process, is justified. Will the Minister assure the RCN that cases against clinicians will continue to be heard using the criminal burden of proof?
The RCN also has concerns about the effect of overturning the decisions of its regulatory body. The council's view will obviously be important because it will deal with protecting the public, but the RCN is concerned about the effect that the clause would have on the standing of the Nursing and Midwifery Council. A party who believes that the correct process has not been followed by a regulatory body can use the current judicial review mechanisms, and there have been many recent examples of that.
Clause 27(4) proposes new powers allowing the courts to review the decision rather than the process. The RCN does not think that the courts would have greater expertise than the regulatory body in deciding the appropriate penalty. It is seeking clarification about the type of cases to which the council may wish to refer, and some strong assurances that the power would be used only in exceptional circumstances. It also points out that the court can make orders regarding the cost of the referral. It is concerned that this could act as a disincentive for regulatory bodies to exercise the full breadth of their powers, and might lead to the suggestion that striking off would be the preferred option in more cases than would be in either the profession's or the public's interest.
The BMA feels that the provision must be narrowly restricted to exceptional circumstances. It would agree to it if it were absolutely clear that it would be used only in exceptional circumstances, and that it would not become routine for GMC decisions to be appealed.
The Chartered Society of Physiotherapists has concerns, pointing out that the health professions order allows for a right of appeal and that, to make a decision on whether something should be referred to the High Court, the council itself will have to undergo an investigatory procedure. Its point is that there could be much added bureaucracy and expense, and more opportunities and processes for investigation than are strictly necessary. In effect, it says that a procedure in which the regulatory body makes a decision, then the council makes a decision and then the court makes a decision should be restricted to the most exceptional cases.
The eight regulators have expressed their concern that there is nothing to ensure that the power to appeal would be used only sparingly. A theme runs through the concerns of all the various bodies. Some are in a position not dissimilar from that of the council. Regulatory bodies with experience of dealing with such matters are all saying, ''Look, this may be all right, but let's keep it restricted to the cases that are the most serious and exceptional.''
Can the Minister reassure me further on the meaning of clause 27? Subsection (1) contains a list of determinations and findings that can be made. It is clear that a relevant decision falling under that subsection will be able to be referred to the High Court if it is unduly lenient. What concerns me is the wording,
''whether as to any finding of professional misconduct or fitness to practise . . . or as to any penalty''.
Paragraphs (a) to (i) seem to contain decisions on sentence. I have not looked at every single one but, to give an example, section 20 of the Osteopaths Act 1993, a standard provision of the kind, makes it clear that there are various types of allegation that can be investigated, and they are listed as
''guilty of conduct which falls short of the standard required of a registered osteopath . . . guilty of professional incompetence . . . convicted . . . of a criminal offence . . . ability to practise is seriously impaired because of . . . physical or mental condition.''
Those are standard allegations for all the professions.
Section 22 of the Osteopaths Act 1993, referred to in clause 27(1)(g) of the Bill says, in subsection (1), that
''it shall be the duty of the Committee to consider''
any of the allegations made under section 20, to which I just referred. Section 22(2) continues:
''If, having considered it, the Committee is satisfied that the allegation is well founded it shall proceed as follows.''
Section 22(4) then lists the penalties, including admonishing, striking off and imposing conditions on practice.
The decision referred to in clause 27(1)(g) is the penalty. That is any step taken under section 22(4) of the Osteopaths Act 1993. The context of that will be that the finding of guilt has been made and what may be appealed or referred to the High Court is the decision on the penalty. As I understand it, that is what the council may find to be unduly lenient, in which case it would refer it.
I do not understand, then, why the words,
''whether as to any finding of professional misconduct or fitness to practise''
are in clause 27(4)(a). The finding in, for example, subsection (1)(g)—relating to section 22(4) of the Osteopaths Act—is the penalty, which might be to
''admonish . . . make an order imposing conditions . . . suspend the osteopath's registration . . . order the Registrar to remove the osteopath's name from the register . . . A conditions of practice order''
and so on.