Amendment made: No. 202, in page 32, line 6, at end insert—
'( ) a direction of the Statutory Committee of the Pharmaceutical Society of Northern Ireland under Article 20 of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968 (c.67),'.—[Mr. Hutton.]
Question proposed, That the clause, as amended, stand part of the Bill.
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.
At the end of clause 27(4)(a) there is a reference to ''any penalty imposed''.
Yes, that is what I am asking about. Am I right in thinking that it is the punishment, or the order that has been made, that is to be referred to the court, it having already been decided that there is guilt? When it has been decided that the allegation is well founded, we move on to the next step. Is that the part, the penalty side of the matter, that can be referred to court? I would be concerned if it were being suggested that the High Court could retry the case, and examine the question of innocence. Clearly, there is a difference between deciding whether the allegation was well founded in the first place and the next step—which I think is the one that can be referred to court—of what happens as a result of that.
I do not think that the Minister and I disagree that if the sentence is too lenient there is a good case for referring it to the High Court. If, however, he means that the High Court can start retrying the allegation to establish whether it has been proved, he and I might fall out. The principle of double jeopardy is not established in English law and is rarely approved of. There would need to be an exceptional situation if one were to agree to double jeopardy, where the proving of the allegation was concerned, although I think that the question of the penalty is different.
The decision referred to in subsection (1) seems to be the penalty decision. If the Minister can confirm that that is right, I do not need to say much more about the matter.
May I first say how pleased I am about the Christmas spirit? Whether it is that or a true sense of co-operation, I am delighted by it. I was becoming disillusioned about the chance of making many changes, so this is super.
I support the Opposition Members who pointed out that the BMA and the RCN are bothered that subsection (4)(a) might be used in other than exceptional circumstances. It would disarm their worries if some words from the explanatory notes were quoted in the Bill. These words get it exactly right:
''It is envisaged that the Council would do this in extreme cases where the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation.''
That says it all and it would be splendid were that somehow enshrined in the Bill.
I am concerned about double jeopardy. I think that we have before us the suggestion that professionals will be tried by their regulatory bodies but then, if that decision is not approved of because they are found innocent or because the decision is unduly lenient—it is heavily weighted—there is the option of them being tried by the High Court. Clearly, that increases the chance of a decision being made against them.
I cite the spectacle of Mr. Dhasmana, whom many will remember as the third man in the Bristol royal infirmary scandal. Having been found guilty of serious professional misconduct by the GMC, and having quite rightly had limitations placed upon his practice, he was retried within hours by the right hon. Member for Holborn and St. Pancras (Mr. Dobson), who said on ''Newsnight'' that he thought that the GMC had got it wrong and that Mr. Dhasmana should be struck off. That is not for me to judge, but the right hon. Gentleman felt that he was in a position to do so, thereby rubbishing eight months of serious consideration by the GMC and about £2 million of its resources in dealing with this incredibly complex and sensitive matter. I am worried that the council might act similarly. As it is weighted with ministerial appointees, it might be tempted to act in a way that was politically correct or to play to the gallery, thereby laying waste months and months of painstaking and expert consideration of a particular case.
How does the council intend to scrutinise such matters? I assume that it will not involve itself with preliminary proceedings, but we do not know that. Will they be considered in a sub-committee? If so, how will it be constituted? We need more detail about the scrutiny of cases of alleged professional misconduct.
My chief concern is that we have not adequately recognised the expertise of regulatory bodies and the painstaking way in which they dissect cases over many months. Many Labour Members still have in the back of their minds the notion that regulatory bodies are driven by health professions in their own interests. I hark back to a point that was made earlier in our deliberations. We tend to find—anecdotally, I admit—that lay members tend to be less censorious than the professionals sitting on regulatory bodies. I am worried that those bodies will not be given due recognition and that there will be a temptation for the council to refer cases to the High Court. We have received limited guidance about exactly what cases will be referred. Will they be cases of genuine concern or simply those that grab the attention of the media?
We have had an important debate in which Opposition Members made sensible and fair comments.
It is important to keep one point firmly in the front of our minds. At present, the only appeal that exists against the decision of a regulator on someone's fitness to practise belongs to the registrant himself. No other remedy is available, either to the regulatory body or anyone else, to query whether those decisions have been in the public interest and properly protect members of the public. The fundamental question for members of the Committee is whether they are content for there to be no such ultimate last-ditch power of review. Our view is clear—the present situation is not satisfactory. That sentiment is shared by the regulatory bodies. They have reservations about the clause—that is fair enough—and I shall try to deal with those in a moment.
No one should interpret clause 27 as calling into question the professionalism or competence of the disciplinary bodies who currently discharge this function. They are doing a good job and protecting the public very effectively. There is no argument about that. The clause is simply an attempt to remedy what is generally perceived to be a loophole, not a subliminal criticism of the work of the regulatory bodies.
Turning to the comments of the hon. Members for Wyre Forest (Dr. Taylor) and for Westbury (Dr. Murrison), we envisage that the clause will work in the same way as clause 25—as a provision of last resort to deal with exceptionally grave cases in which there has been a perverse decision or the public interest has not been fully and properly served. There have been very few such cases—probably only half a dozen in the past four or five years. The power will need to be used only in exceptionally rare circumstances.
If Opposition Members want to reassure themselves, they should have a good look at clause 27(4), which gives three separate thresholds that the council must satisfy before it can refer a case to the High Court. First, it must satisfy itself that the decision has been unduly lenient; secondly, that it should not have been made; and, thirdly, that it would be desirable for the protection of members of the public. I am convinced that the clause does not constitute a right to roam or to interfere with every disciplinary decision taken by the regulatory bodies, and I would not propose it if it would have that effect.
It is worth remembering that—as I made clear in relation to previous amendments, when the Committee accepted my argument—it is the final decisions of the appropriate committee or body that will be made subject to such exercises of the power by the council. If we had decided that earlier decisions—for example, not to investigate a case at all—could be subject to review, that could be seen as driving a coach and horses through professional self-regulation. The provision is based on the fact that we trust the regulatory bodies implicitly to do this work. To give the council a right to appeal or interfere in decisions such as not to initiate proceedings would be a much more serious intervention in the professionally led self-regulation arrangements in which we believe and have confidence. We have tried on several occasions, through amendments and argument, to clarify our intentions and to reassure hon. Members that the Bill does not constitute a loss of faith on our part in professionally led self-regulation or a lack of confidence in those who are doing that work.
The hon. Member for North-East Hertfordshire (Mr. Heald) asked whether findings or punishments would be subject to potential reference to the High Court. The answer is yes in both cases, and rightly so. That is stipulated by subsection (2)(a). It is important that both a decision to impose a sanction and a decision not to do so should be subject to referral. To confine the right to one or the other would not be terribly sensible.
I understand that. It should be viewed in the light of the final words of the subsection, which are
''under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies''.
That seems to relate only to the punishment aspect, not to the part of the hearing that deals with whether the allegation is well founded. To give an example, section 22(4) is the part of the Osteopaths Act 1993 that deals with punishment.
I am grateful to the hon. Gentleman for bringing that example to mind. We have always intended that both aspects of a final decision—a decision not to impose a sanction as well as a decision to do so—should be reviewable if the three thresholds in subsection (4) are met and the council is satisfied that a case should properly be referred to the High Court.
If someone is accused of incompetence and the disciplinary body finds that to be the case, so the allegation is proved, two potential options could be to take a disciplinary measure that is too lenient or not to take one at all. The Minister is suggesting that in either instance the matter can be referred to the court. However, that is not really appealing the finding of fact on whether he was incompetent.
I shall come to that in a moment, because it relates to the hon. Gentleman's point about double jeopardy. We are referring the decision of the disciplinary committee and, potentially, the council to the High Court.
The hon. Gentleman expresses worries about the powers of the court, in the context of double jeopardy, and the options that it has. In clause 27(8), we have spelt out the options that the court should have and they are the widest range of options possible. The court could review the case itself and decide on appropriate sanctions. Equally, it could refer the case back to the regulatory body for a fresh determination. If, in principle, we accept that the High Court should have such jurisdiction, we should give it the widest number of tools and ones that are appropriate for the variety of cases coming before it.
There has been a misunderstanding that the judgment of the council could be substituted for the verdict of the disciplinary committee of the regulatory body, but that is not the case. I hope that clause 27(8) has made that clear. The role of the council is simply to make a decision using the provisions of the Act. Subsection (4) addresses the referring of such a case to the High Court; that will be the limit of council's responsibility, and it is not to substitute its judgment for that of the regulatory body of the relevant profession.
The point that I was illustrating by referring to the right hon. Member for Holborn and St. Pancras was that it takes many months to form judgments on these issues because they are so complicated; the Bristol royal infirmary is a good case in point. My concern is that the judgment that the council comes to will not be sufficiently considered. Given the complexity of the issues and the expertise of those who make judgments—they may have been involved in such matters for many years—I am concerned that we do not know about the structure of scrutiny that is proposed under the Bill and that the judgment could be summary and not well considered.
The hon. Gentleman should not write off the council as quickly as that and before it has even been appointed and begun its work. He should not lose sight of the fact that nine representative members from the regulatory bodies will sit on the council. That should reassure him because those will be people with experience of professional self-regulation. The council will not be acting or operating in the dark and it will not be able to act arbitrarily because it will be a public body with statutory responsibilities to discharge. If there is a sense that a decision has been arbitrary, opportunities to challenge and review it are also there. I get the sense that the hon. Gentleman does not want such appeal at all—that is the logical conclusion to his argument. He should address that and give us his opinion.
I did not understand the comments of my hon. Friend the Member for Westbury in the same light as the Minister. To give an example, let us say that there is a case involving a podiatrist and the matter is dealt with by the new Health Professions Council. First, the disciplinary committee hears detailed evidence from podiatrists about the behaviour of an individual and it decides that it shows incompetence but not of the worst sort. The matter then goes to the council, but there might not be a podiatrist on it. Will a hearing take place and evidence be called? How is the council to know whether the decision that has already been taken was reasonable or not? In court, evidence can be heard and findings considered, but what will the council be able to do to help it decide?
The council will have to do what it thinks appropriate to reach a decision. I imagine that it would want to review the evidence available to the disciplinary committee or the final decision-making body of the regulatory body. That is entirely appropriate, but it could not reach an arbitrary decision that is not capable of being supported by the facts because that decision would be unreasonable. A number of people, including the registrant and the regulatory body, could seek a review of the council's decision.
The concerns of the hon. Member for Westbury suggest a fundamental lack of confidence in the council. That is untimely because the council has not yet established itself or been able to offer any assurances to the hon. Gentleman on how it will discharge those functions.
I am forced to suspend judgment on the council because we do not know exactly how it will work. We have been given a broad brush idea of how it will discharge its functions and assurances that it will investigate only matters of pressing public interest, but there is little to suggest exactly how it will work. I hark back to the way in which such matters are investigated by the regulatory bodies. In general, we are talking about the GMC because most disciplinary cases concern doctors. The GMC does painstaking work to reach incredibly complex decisions and I do not have the feeling from what I have in front of me to examine that the council will act other than as a coach and horses through painstaking, piecemeal work that has been carried out by the regulatory bodies over the course of many months. I should be very grateful if the Minister could set out how the council will work and reassure me because, like him, I am anxious to protect the public.
I can only say that the hon. Gentleman has not listened to a single word that I have said, either about the reassurances that I have offered the Committee or my comments on how the council will operate. He is a person of good will and fair judgment and he will understand that I cannot stand up today and tell him how the council in every case that comes before it will make its decision on whether to refer a case to the High Court. I cannot possibly do that. The hon. Gentleman is asking me to do something that no Minister could ever do. However, I can tell him that the procedures must be fair, reasonable and justifiable, because they could easily be challenged by the registrant or the regulatory body if it felt so motivated. I tried to suggest earlier that we believe that there will be very few cases—perhaps one or two a year. His use of the phrase ''coach and horses'', given his observations on the number of such cases that the GMC consider, is, with the greatest respect, laughable.
I think that the hon. Gentleman misunderstands the provision and there is no point in my repeating my assurances because I have done so several times, but, sadly, not one of them seems to have penetrated the hon. Gentleman's mind. That must be my fault and not his, but I recognise my inadequacies in that respect and do not want to detain the Committee further with repetitious arguments. I have tried to clarify some of the issues for the Committee.
The more substantial point raised by the hon. Member for North-East Hertfordshire concerned double jeopardy and I want to say something about that. We envisage the power being used only in extreme cases when the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation. I gave an example earlier of the sort of case in which it could be used and I emphasise that it is a real example. A regulatory body re-admitted to the register a person who had been struck off for circulating paedophile literature. It did so on the grounds that he had done that away from his workplace and not during the course of professional practice. That decision caused enormous concern to the regulatory body, but it could not review the decision. There was no appeal. The hon. Member for Westbury asked me to give an example of a case in which there might be grounds for a right of appeal. Does he not accept that that might be such an example?
The question that should exercise the hon. Gentleman—it does not seem to be troubling anyone else here—is who should do that? Does he want me to do that, or the Secretary of State? I suspect not. Or would he like an independent council, drawing upon the experience of the regulatory bodies, to be entrusted by this House with that responsibility, knowing that it is subject to the full scrutiny of the courts and, of course, the legal rights of the registrant himself? It is a pretty overwhelming case.
The Minister makes a good point. I do not know the details of that case, but on the face of it, it sounds abhorrent, and one that should certainly be a candidate for review. But, harking back to the snap judgment of the right hon. the Member for Holborn and St. Pancras on ''Newsnight'', my point is that if we are not in full possession of the facts, and have not had months and months of scrutiny, we might not be as well informed as the regulatory bodies. That is my concern. I simply seek reassurance about how the body will work—no more, no less.
I understand that point, and I have been trying to signal to the hon. Gentleman that the body must act reasonably, have a fair procedure for coming to a decision in relation to these issues, as any competent body must do, and satisfy the three separate thresholds that we have laid down before making any determination. It is not then the council's judgment whether a person has been unduly leniently treated or otherwise by the regulatory body; it is the High Court's decision that will ultimately determine this issue. That is a pretty formidable set of reassurances, which I hope, perhaps against hope, that the hon. Gentleman might come to acknowledge at some point.
The hon. Gentleman's analogy with criminal proceedings is largely false. The finding that the High Court, or its equivalent in other parts of the United Kingdom—the High Court in Northern Ireland or the Court of Session in Scotland—could overturn an appeal, would not be a verdict of not guilty, but, for example, a finding that the conduct investigated did not call a person's fitness to practise into question. As it happens, there is a partial precedent for that in the Attorney-General's references under the Criminal Justice Act 1988, upon which the hon. Gentleman might reflect. I do not consider it to be double jeopardy for a higher court to examine whether a lower court has erred in law. Neither would a person, whose case was appealed by the council to the High Court, thereby be placed, in any strict or in any loose sense of the word, in genuine double jeopardy.
It is also worth bearing in mind—this is my parting shot to the hon. Gentleman in the forlorn hope of persuading him to my side of the argument—that in current appeals from decisions of regulatory bodies the courts have generally been very reluctant to overturn regulatory bodies' findings, although they have the power to do so, unless those findings have been plainly wrong. I do not think there will be any reason to assume that there will be any different approach by the High Court in relation to cases that are referred to it under the Bill.
I hope that I have addressed the concerns that have been perfectly properly and fairly raised by Opposition Members. The problem is one of a lack of sufficient safeguards and a potentially serious loophole, which might allow people who should not be practising, to continue to practise.
I do not want to over-egg my pudding, because I have already made it clear that we think this such cases will be exceptional, but there is clearly a risk, and it is a risk that I am not prepared to countenance any longer. The clause creates a simple remedy to the problem, which I believe complies with all the requirements of legal process and the Human Rights Act 1998, by giving the council the power to refer a final decision by a regulatory body on a fitness to practise case to the High Court. The clause, as I made clear, gives the High Court the same powers to reconsider the case that it already has in cases that come to it on appeal by the registrant. Those powers are provided for all civil appeals in the civil procedure rules.
An alternative approach might have been for the regulatory body to be able to appeal against the decision of its fitness to practise committee. That clearly has some attractions and we are obviously aware of the efforts that the regulatory bodies are making in that regard. However, there are formidable legal difficulties in a single legal entity, such as the GMC, appealing against a decision made by one of its own committees. Those issues are being considered, but there are formidable legal difficulties in going down that path.
Our solution is a simple but effective one, which is pretty comprehensively dug in with safeguards of the kind for which the hon. Gentleman is looking, and which offers the public the safety and reassurance that it needs and which I believe it currently does not have.
This has been a fruitful debate. I am grateful to the Minister for giving an assurance that the provision will be used only in the last resort, and that he envisages that very few such cases will arise. I am also pleased to hear that it will not provide an avenue for appeal against a not guilty decision, but will relate to issues such as admonishing those found guilty or restoring them the register.
My hon. Friend the Member for Westbury made a good point when he said that the procedures of the council are important. There is the analogous situation of one's confidence in the Attorney-General, who, as a lawyer, considers all the papers in a proper way. He has years of experience in judging whether a sentence is lenient, and tends to operate in areas where, as a lawyer, he can understand the ambit of sentence in the light of the facts. Some medical decisions are complex, and one can end up arguing about points of medicine that the ordinary layman would not necessarily understand. In a world in which medical specialism is becoming the way forward—there are now far less general physicians and general surgeons—the question of professional competence could raise detailed issues on which the professional conduct committee, which consists of doctors, would hear evidence. The committee would decide whether there was incompetence, and the gravity of it, on the basis of evidence from specialists.
In reviewing a decision and deciding whether to refer it, it is important that the council has the tools not just to read but to understand evidence heard by the professional conduct committee. For example, the council might need access to advisers on particular aspects of medical practice, and it might even want to call witnesses in a small hearing of its own in order to understand the detail of the issues. My hon. Friend the Member for Westbury was right to say that the procedures need to be rigorous, so that cases are referred only when necessary.
As I understand it, where one of the professional conduct committee filtering systems fails, the bereaved, or the relatives of the victim, could apply for judicial review on the ground that the decision of, say, the screening committee of the GMC had not been exercised in accordance with due process of law, or that it operated in an unreasonable way. They could then obtain an order from the court on judicial review, requiring the GMC to investigate, or to pursue an investigation beyond a certain level. Such a review took place in the case of Caryl Holmes, Derrick Dean and Valerie Dean v. the General Medical Council, Dr. M.M. Rahman and Dr. S. Sengupta. The court was happy to order that the investigation continue because there had been an error of law.
The Minister is right to say that there is no matter that the court could not address, but it would be on judicial review if an investigation that perhaps should have been pursued were not pursued. I should like to consider further what the Minister has said, but given what I have heard so far I will not seek to divide the Committee.
Clause 27, as amended, ordered to stand part of the Bill.