Schedule 7

Health and Social Care Bill – in a Public Bill Committee at 11:00 am on 22nd January 2008.

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Adjudication functions under Medical Act 1983 and Opticians Act 1989

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I beg to move amendment No. 268, in schedule 7, page 135, line 6, leave out ‘must’ and insert ‘may’.

The schedule inserts a new section into the Medical Act 1983 that provides for the GMC to publish guidance on what are known as indicative sanctions—that is, what sort of sanctions should be applied to the doctor depending on the facts found by the adjudication panel. In addition, the OHPA must take account of the guidance and new section 40A, which is set out in paragraph 11, provides the GMC with powers to refer decisions to the relevant court on certain grounds such as leniency.

Although it is intended that the OHPA will be a separate and independent body with an overall adjudication function, the new provisions I have outlined will allow the GMC to continue to determine the sanctions that should apply in fitness to practise decisions and the OHPA must take account of such guidance in making its determinations. Further, the GMC will be able to challenge decisions by the OHPA panels on a number of grounds. The amendment is an attempt to provide the OHPA with greater independence. The Minister spoke  earlier about the need for that, and the fact that it was highlighted by the Shipman case, but it is not clear in the Bill that the OHPA will be as independent as it should be.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

Schedule 7 inserts a new section into the Medical Act 1983, allowing the regulator to publish guidance on the factors affecting the registrant’s performance and the appropriate sanctions. The provision of such guidance follows Lady Justice Smith’s recommendations as part of the Shipman inquiry:

“Urgent steps should be taken to develop standards, criteria and thresholds so that decision-makers will be able to reach reasonably consistent decisions at both the investigation and the adjudication stages of the FTP procedures and on restoration applications.”

Under schedule 7, the OHPA will be required to take account of such guidance in exercising its functions; the guidance will not be binding and it will make its final decision based on the facts of each individual case. The amendment would remove the requirement on the OHPA to take account of the guidance and replace it with an optional duty to do so.

The GMC has and will retain responsibility for setting and maintaining the standards required of doctors. The guidance on the standards is published as good medical practice and is widely regarded as setting the international standard for medical practice. The GMC currently publishes guidance for use by its fitness to practise panels when considering what sanctions to impose following a finding that the fitness to practise of a doctor may be impaired. Currently, the medical and lay panellists appointed to sit on the panels exercise their own judgments in making decisions, but they must take into consideration the standards of good practice that the GMC has established, which have been drawn up—and will continue to be drawn up—after wide consultation, and which reflect what society expects of doctors.

To allow the OHPA discretion as to whether it will take account of that guidance would, we believe, be likely to lead to confusion and possibly even challenge about the conduct and outcome of cases. We think that it is right and proper that the OHPA should take account of good practice guidance, which is after all the basis on which the cases will be put before its panels. That is why we have placed the obligation on the OHPA in the Bill. As I have said, the panels will not be obliged to follow rigidly the guidance published, but they must take account of it. Given those reassurances, I hope that the hon. Lady will feel able to withdraw her amendment.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health 11:15 am, 22nd January 2008

I thank the Minister for the clarification. It seems that the Bill as drafted is not as prescriptive as I had originally envisaged, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I beg to move amendment No. 95, in schedule 7, page 135, line 8, leave out

“rules made by virtue of paragraph 5A(3)” and insert ‘paragraph 5A(3E)’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss Government amendments Nos. 96 to 116 and Nos. 120 and 121.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

The amendment will enable the GMC to refer to the OHPA cases where a registrant fails to submit to, or comply with, an assessment of their performance in cases involving fitness to practise.

Amendment agreed to.

Amendments made: No. 96, in schedule 7, page 135, line 15, after ‘“the Adjudicator”,’ insert—

‘( ) after paragraph (d) insert—

“(da) decisions of the Adjudicator to make a direction under paragraph 5A(3E) of Schedule 4 to this Act and decisions of the Adjudicator under section 35D below that relate to such a direction;”,’.

No. 97, in schedule 7, page 136, line 3, leave out from ‘subsection (4)’ to end of line 4 and insert—

‘(a) for “a Fitness to Practise Panel have” substitute “the Adjudicator has”, and

(b) in paragraph (c) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.

No. 98, in schedule 7, page 136, line 22, leave out sub-paragraph (11) and insert—

‘(11) In subsection (9)—

(a) in paragraph (a)(iii) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”, and

(b) in paragraph (b) for “a Fitness to Practise Panel” substitute “the Adjudicator”.’.

No. 99, in schedule 7, page 136, line 25, at end insert—

‘( ) In subsection (11)(b) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.

No. 100, in schedule 7, page 136, line 40, after ‘(2)’ insert—

‘(a) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”, and

(b) ’.

No. 101, in schedule 7, page 136, line 42, leave out sub-paragraph (3) and insert—

‘(3) In subsection (3)—

(a) in paragraph (a)—

(i) in sub-paragraph (i) after “10” insert “or 10A”, and

(ii) omit sub-paragraph (ii), and

(b) in paragraph (b) for “paragraph 5A(4) of that Schedule” substitute “paragraph 5A(5) of Schedule 4 to this Act”.’.

No. 102, in schedule 7, page 137, line 26, leave out ‘rules made by virtue of paragraph 5A(3)’ and insert ‘paragraph 5A(3E)’.

No. 103, in schedule 7, page 137, line 41, leave out ‘rules made by virtue of paragraph 5A(3)’ and insert ‘paragraph 5A(3E)’.

No. 104, in schedule 7, page 139, line 37, at end insert—

‘ In section 41C of the 1983 Act (effect of directions or orders on a licence to practise), in subsection (1), for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”.’.

No. 105, in schedule 7, page 140, line 11, leave out ‘paragraphs (a) and (b)’ and insert ‘paragraph (a)—

(i) ’.

No. 106, in schedule 7, page 140, line 12, at end insert—

‘(ii) in sub-paragraph (ii) for “rules made by virtue of paragraph 5A(3)” substitute “paragraph 5A(3E)”,’.

No. 107, in schedule 7, page 140, line 12, at end insert—

‘( ) in paragraph (b) for “a Fitness to Practise Panel” substitute “the Adjudicator”, and’.

No. 108, in schedule 7, page 142, line 16, leave out from beginning to end of line 21 and insert ‘omit sub-paragraphs (3) and (3A),’.

No. 109, in schedule 7, page 142, line 21, at end insert—

‘( ) after sub-paragraph (3A) insert—

“(3B) If the Registrar is of the opinion that a person who is the subject of an assessment of the standard of the person’s professional performance—

(a) has failed to submit to the assessment, or

(b) having submitted to the assessment, has failed to comply with reasonable requirements imposed by the Assessment Team,

the Registrar may refer the matter to the Adjudicator.

(3C) If the Investigation Committee are of the opinion that a person who is the subject of an assessment of the standard of the person’s professional performance—

(a) has failed to submit to the assessment, or

(b) having submitted to the assessment, has failed to comply with reasonable requirements imposed by the Assessment Team,

the Investigation Committee may direct the Registrar to refer the matter to the Adjudicator and, on receipt of the direction, the Registrar shall make such a reference.

(3D) The Registrar shall without delay serve on the person who is the subject of the assessment notification of the making of a reference to the Adjudicator under sub-paragraph (3B) or (3C).

(3E) Where a matter is referred to the Adjudicator under sub-paragraph (3B) or (3C), the Adjudicator may, if it thinks fit—

(a) direct that the person’s registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 12 months as may be specified in the direction; or

(b) direct that the person’s registration shall be conditional on the person’s compliance, during such period not exceeding 3 years as may be specified in the direction, with such requirements so specified as the Adjudicator thinks fit to impose for the protection of members of the public or in the person’s interests.

(3F) Where, under sub-paragraph (3E), the Adjudicator gives a direction for suspension or a direction for conditional registration the Registrar shall without delay serve on the person concerned notification of the direction and of the person’s right to appeal against it under sub-paragraph (5).

(3G) While a person’s registration in the register is suspended by virtue of a direction under sub-paragraph (3E)—

(a) the person is to be treated as not being registered in the register notwithstanding that the person’s name still appears in it, but

(b) sections 31A, 35C, 35CC, 35D, 35E and 39 are to continue to apply to the person.”’.

No. 110, in schedule 7, page 142, line 24, at end insert—

‘( ) for “by virtue of sub-paragraph (3) above” substitute “under sub-paragraph (3E)”,’.

No. 111, in schedule 7, page 142, line 27, at end insert ‘, and

( ) after sub-paragraph (5) insert—

“(5A) Subject to paragraph 9 below, an appeal under sub-paragraph (5) must be brought before the end of the period of 28 days beginning with the date on which notification of the direction was served under sub-paragraph (3F).”’.

No. 112, in schedule 7, page 142, line 40, leave out from ‘sub-paragraph (1)’ to end of line and insert—

‘(a) after “39(2),” insert “40A(9),”, and

(b) after “this Act” insert “or paragraph 5A(3D) or (3F) above”.’.

No. 113, in schedule 7, page 142, line 40, at end insert—

‘( ) In paragraph 9—

(a) in paragraph (a) after “this Act” insert “or paragraph 5A(3F) above”, and

(b) after “section 40 of this Act” insert “or (as the case may be) paragraph 5A(5) above”.’.

No. 114, in schedule 7, page 142, line 42, at end insert—

‘( ) After paragraph 10 insert—

“10A (1) A direction for suspension or for conditional registration given by the Adjudicator under paragraph 5A(3E) above shall take effect—

(a) where no appeal under paragraph 5A(5) above is brought against the direction within the time specified in paragraph 5A(5A) above, on the expiration of that time;

(b) where such an appeal is so brought but is withdrawn or dismissed for want of prosecution, on the withdrawal or dismissal of the appeal;

(c) where such an appeal is so brought and is not withdrawn or dismissed for want of prosecution, if and when the appeal is dismissed.

(2) Where the time for appealing against a direction is extended by an authorisation under paragraph 9 above—

(a) sub-paragraph (1) shall apply to the direction as if the reference in paragraph (a) to the time specified in paragraph 5A(5A) above were a reference to that time as so extended; and

(b) if the authorisation is given after the expiration of the time specified in paragraph 5A(5A) above, the direction shall be deemed not to have taken effect on the expiration of that time,

and any reference in this Act to the time when such a direction takes effect in accordance with this paragraph shall be construed accordingly.”’.

No. 115, in schedule 7, page 142, line 42, at end insert—

‘( ) In paragraph 11, in sub-paragraphs (1) and (3)—

(a) after “section 35D(2) of this Act” insert “or paragraph 5A(3E) above”, and

(b) for “that section” substitute “section 35D”.’.

No. 116, in schedule 7, page 142, line 42, at end insert—

‘( ) In paragraph 12 for “rules made by virtue of paragraph 5A(3) of this Schedule” substitute “paragraph 5A(3E) above”.’.—[Mr. Bradshaw.]

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I beg to move amendment No. 117, in schedule 7, page 148, line 11, at end insert—

‘ After section 23C of the 1989 Act insert—

“23CA Assessments

(1) If the Adjudicator considers (on reasonable grounds) that it would be of assistance to it, in dealing with any proceedings before it, for there to be an assessment of—

(a) the standard and quality of the work done or being done by the person to whom the proceedings relate (“P”); or

(b) the health, or specific aspects of the health, of P, the Adjudicator may request the registrar to arrange for an assessor to be appointed to report on the standard and quality of P’s work or (as the case may be) on P’s health or specific aspects of P’s health.

(2) On receipt of a request under subsection (1), the registrar shall arrange for one or more assessors to be appointed in accordance with rules made by the Council.

(3) The Council may make rules about the carrying out of the assessment and the making of the report.

(4) If P fails to submit to, or co-operate with, the assessment the Adjudicator may draw such inferences from P’s failure as it considers appropriate.

(5) This section does not apply if the person to whom the proceedings relate is a body corporate.”’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss Government amendments Nos. 118 and 119.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

The amendments do what the previous ones did, but with relation to the Opticians Act 1989.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Briefly, both in relation to these amendments and the previous ones: is there a reason why they have appeared in the Bill now, rather than at the time of its original publication?

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

We were still in discussion with the relevant regulatory bodies about the details.

Amendment agreed to.

Amendments made: No. 118, in schedule 7, page 150, line 39, at end insert—

‘ In section 33 of the 1989 Act (default powers of Privy Council), in subsection (3)(b), after “23C,” insert “23CA,”.’.

No. 119, in schedule 7, page 150, line 39, at end insert—

‘ In section 34 of the 1989 Act (subordinate legislation procedure), in subsection (2), after “23C” insert “or 23CA”.’.—[Mr. Bradshaw.]

Schedule 7, as amended, agreed to.