Further written evidence to be reported to the House
Health and Social Care Bill
4:00 pm
Lady Justice Smith: There is one matter, which you might feel is quite small. It relates to the fitness to practise panels under clause 93, subsection (2) of which states:
“A fitness to practise panel is to consist of...a chair selected from the lay members list or the professionally qualified members list”.
I recommended that adjudication panels should be chaired by legally qualified people. I explained a number of reasons why I made that recommendation. The GMC has never done it. It does not think that it is necessary but, of course, we are not talking about the GMC. I had understood that the chief medical officer was more or less in agreement with my proposal, although I noticed that, in his review of my report, he just said that there should be an independent adjudicator and that panels should be staffed appropriately with those who are medically and legally qualified and lay people. I understood from that that he wanted some legal expertise on the adjudication panels, which is what I had wanted.
Now I see that the chair must be selected from the lay members or the professionally qualified members. I then tried to find out the meaning of a professionally qualified member, and the definition section under clause 93(4) states that a
“‘professionally qualified members list’ means the list of persons eligible to serve as professionally qualified members provided for by section 94(1)(b)”.
Section 94(1)(b) states that they are
“persons eligible to serve as professionally qualified members”.
Around we go in a circle.
I suspect that the provision means medically qualified people, but that is not made clear. I would like it to be made clear that there can be legally qualified people on the panels. As the way in which the panels are to work will be decided by the Office of the Health Professions Adjudicator, not by Parliament—reference can be made to an example, under clause 94(6), of the delegated legislation rules that are to be made by OHPA—I should like the OHPA at least to have the option of having legally qualified chairs. If you want me to give reasons why I think that that is a good idea, I shall do so, but they are set out in my report.
I believe in horses for courses and in professional expertise being matched to the nature of the tasks in hand. Chairing a disciplinary tribunal is a job for a legally qualified person, not a lay person. Legally qualified people who appear in front of such tribunals are capable of running rings round the tribunal if no one on the panel is legally qualified. The proceedings would take a lot longer than they needed to if there was not a legally qualified chair. You would achieve a much higher standard of reasoned decision if you had a legally qualified chair because writing a judgment, which is what such a decision is, is a job that requires professional expertise.