Clause 93
Health and Social Care Bill
11:15 am
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment No. 204, in clause 93, page 46, line 6, after ‘a’ insert ‘legally qualified’.
The purpose of the amendment is to make only those who are legally qualified eligible to be chairs of fitness to practise panels. We note that under schedule 6, the chair of the OHPA must be legally qualified and that clauses 96 and 97 make provision for legal and clinical assessors respectively to give relevant advice to fitness to practise panels. I ask the Committee to bear in mind the fact that there is a cross-referral from clause 93 to clause 104, which is the standard of proof clause. Due to the way in which the Bill is drafted, we find ourselves debating this element before we come to the standard of proof element, but I am sure that members of the Committee will recall the evidence of Lady Justice Smith in relation to both matters, particularly on understanding the question of grading the proof required when moving to the civil standard of proof. That would not pose problems for somebody who was legally qualified, as I will come on to when we debate clause 104, but she expressed concern about the chairs of the panels not being legally qualified.
Lady Justice Smith particularly noted in her oral evidence that
“adjudication panels should be chaired by legally qualified people.”
She went on to say:
“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.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
She was referring to recommendation 79 in her fifth report of the Shipman inquiry, which states:
“In the event that the GMC retains control of the adjudication stage, it should appoint a number of legally qualified chairmen who should, as an experiment or pilot, preside over the more complex FTP panel hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits, whether in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and/or fewer appeals.”
I note in particular that the recommendation is conditional on the GMC retaining control of the adjudication stage, which of course it is not, and that pilots are sought on more complex hearings. At the time of the inquiry, she also explored the possibility with Sir Donald Irvine, the former president of the GMC, who noted:
“I think the arguments are pretty closely balanced, but I think on balance I would stick with a non-legally qualified Chairman provided that people are well trained and that there is a very good legal assessor.”
In her oral evidence, Lady Justice Smith brought out the issue of having if not legally qualified chairs, at least a legally qualified person on the panel, which would fit into the Bill most obviously at clause 93(2). While clause 96 makes provision for a legal assessor, there is no requirement for fitness to practise panels to have a legal assessor in full-time attendance. During my examination of the Minister in an evidence-taking session, he said that the Government would be willing to look at the issue of legally qualified chairs and were
“certainly happy to go away and think a bit further about that”
if there was wide concern in the Committee. The Minister also suggested that
“the GMC was a bit iffy about that issue”.
Or was it sniffy?