Clause 93

Health and Social Care Bill – in a Public Bill Committee at 11:15 am on 22nd January 2008.

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Fitness to practise panels

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

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?

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

I leave it to be determined over time and the purposes of history. I think we all heard sniffy, but I am glad to see that the Official Report states “iffy”, so everybody is happy. The Minister said,

“the GMC was a bit iffy about that issue because its view was that in some cases it is important—particularly in complex medical cases”—

Let us not forget that many are—

“that the chair has medical rather than legal expertise.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 98, Q238.]

I would be grateful, therefore, if he will give me the reference for that assertion as I cannot see it in the GMC’s evidence. It is vital to make the link between what the Minister said and the GMC’s evidence on that point. As I read it, the GMC was more at pains not to give extra work to lawyers—as someone who has not practised for 19 years, that comment cannot be levelled at me—and to point out the constantly high quality of the decisions that its fitness to practise panels make.

I have a helpful communication from my hon. Friend the Member for Woking (Mr. Malins) who is both a lawyer and sits on the GMC panel. He makes the following point, which is important in case anyone thinks that the amendment is a veiled criticism of the calibre of the people who are currently chairing the panels:

“I have sat under about a dozen chairmen. One of these is, as it happens, an ex clerk to the Justices and a solicitor and he is tip top. Under him, cases rattle on at a correct and proper pace.”

He compliments the person and goes on to say that they are doing well. I will not read out the whole letter, but my hon. Friend points out how essential training is—not least in matters of procedure and law—for the system to work well. Considering the new scheme that the Government have put in place and Lady Justice Smith’s concern about the absence of legally qualified chairmen, we have reached the point where if we are to make any difference to and improve what the GMC has done, it should be without criticism of the past because that would be both disproportionate and unfair. The amendment provides something extra to enable us to ensure that future prospects are improved.

Finally, in response to my questions on the civil standard of proof, when Lady Justice Smith prayed in aid for her argument in favour of legally qualified chairman she said:

“How the measure works in practice will require considerable training. That is one of the reasons... for having a legally qualified chairman. The chairman will understand how it works. If you tell a lay person how to apply the sliding or variable standard of proof, they might find themselves in some difficulty, but a lawyer would not.”——[Official Report, Health and Social Care Public Bill Committee, 8 Jan 2008; c. 40, Q71.]

In conclusion, although I thank the Minister for his earlier willingness to consider the issue more closely, I have shown that a number of considerations need to be addressed: the change that the creation of the OHPA delivers, the impact and interpretation of the civil standard of proof, the complexity of the case before the panel and the length of time it takes to conclude a panel.

It was the GMC’s understanding that the Bill did not preclude the selection of legally qualified chairs. I believe that to be true, but I would be grateful if the Minister could confirm it. However, for the legally qualified person to be eligible to chair, they would have to be on either the lay members list or the professional members list, so they have two eligibility hurdles to leap, rather than just one. Would it not be sensible for the Bill to  make some provision for future regulations concerning either a legally qualified list or a demarcated legally qualified constituency in both lists?

Given the evidence I have laid before the Committee and the advice of such wise heads, it would be advantageous for the Department to follow Lady Justice Smith’s original recommendation and at least set up a pilot to establish whether legally qualified chairs make a substantial difference. If the Minister is amenable to that idea, the Bill should be framed to reflect most effectively the outcomes of those pilots.

I hope the Minister recognises that the hearings could be made more efficient through the use of legally qualified chairs. I also hope he recognises the power of Lady Justice Smith’s contention that the silver standard of proof would be better administered by a legally qualified chair and that it might be useful to pilot that.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I support the aim of the amendment. As the hon. Gentleman mentioned in his concluding comments, the clause as drafted has a lay list and a professional list. There seems to be no provision for the inclusion, even in the lay list, of someone who is legally qualified. Consequential amendments are needed if the principle of that argument is approved.

I, too, was taken by Lady Justice Smith’s oral evidence to the Committee. I do not want to repeat what the hon. Gentleman said, but the following comments of Lady Justice Smith are worth referring to:

“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.”

I assume by that she means a medically qualified 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 Jan 2008; c. 37-8, Q64.]

I hold no particular brief for the legal profession, and I am not sure that lawyers were the best example to choose—a lot of people are unhappy with some of the fitness to practise decisions, but we are not here to discuss that. However, I was persuaded by the argument that the proposal would save time and be more effective, because somebody who has intimate knowledge of the law would be ahead of any panel, however well trained it was. There is always flux in the new panels as people usually serve on them only for a certain length of time.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons) 11:30 am, 22nd January 2008

Does the hon. Lady agree that one of the other advantages of having a legally qualified chairman would be not only legal experience but judicial experience, which is highly likely in someone experienced enough to do that job?

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

That is a helpful point. I was about to conclude my remarks by saying that shorter, sharper proceedings would help: justice would be seen to be  done, and somebody with overall knowledge of the way that the justice system works, with the skills set to harness the arguments and present them in a reasonable form, should not be dismissed lightly. Even if the Minister is not inclined towards the amendment, I hope that he looks further at the provision. I was persuaded by Lady Justice Smith that having only legally qualified advisers would not be enough.

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

As I have indicated, we agree with what Lady Justice Smith said and that a legal chair might add some discipline to proceedings, which could be helpful in lengthy and complex cases. However, we are not convinced that the panel would need a legally qualified chair in every case of fitness to practise, as the amendment would require.

I will give a couple of examples that might be helpful. For instance, if the issue at stake is the physical or mental health of the practitioner, one might argue that it would make more sense to have a medically qualified, rather than legally qualified, chair. A legally qualified chair would probably be unnecessary in review hearings where the panel is considering whether continuing restrictions are required. The same applies to conviction cases where the panel considers a case that has been handled in the courts, or in determination cases where the panel is considering a decision by another regulator, perhaps one from abroad. Findlay Scott referred to those concerns in his evidence to the Committee. He did not specifically say that there may be cases where a medically qualified chair would be preferable, but he implied it strongly when he said that he did not see a need for both legal assessors and a legally qualified chair:

“What we have sought to do within the current arrangements is persist with the model based on the legal assessor but occasionally have legally qualified chairs where that is an advantage.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 56, Q117.]

There may be cases where it is not necessary to have a legally qualified chair, but what we are trying to do, and what we will try to do on Report, is to think about the matter and bring back something that will meet the concerns raised by hon. Members and by Lady Justice Smith, without putting the new, independent adjudicator in the position where it has to have a legally qualified chair for every case.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I may have misunderstood, but I was under the impression that if fitness to practise was applied to someone with a health concern they would be dealt with by a different panel to the one dealing with someone who is bad. In that case, it would be fairly easy to make a distinction between the two. It is not enough to have somebody who is medically qualified. For example, a surgeon may have little sympathy with mental health problems. Therefore, we need to finesse some of the Minister’s arguments.

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

In a way, the hon. Lady is making the point for me. We need to retain an element of flexibility. Amendment No. 204 would require all panel hearings to be chaired by somebody who is legally qualified.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

The Minister has given us some examples of cases in which medical expertise will be required. Will he accept that the medical expertise could quite properly come from other members of the panel and not just the chairman? What will be the case in all such hearings is the necessity to understand the standard of proof issues that have been raised. Will he also accept that that was Lady Justice Smith’s main reason for taking the view that a legally qualified chairman would be necessary? That will be true in all cases, and not just in the examples that the Minister has given.

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

I am not sure that the hon. Gentleman is right in saying that in all cases there would have to be a legally qualified chair. He ignores the fact that legal assessors would be available to the panels. It is also worth bearing in mind that Lady Justice Smith’s recommendations were informed by a particular case, which was very lengthy and complex. It would be unwise of the Committee to ignore the fact that many of these cases are more straightforward. As the GMC argues, its current system, in which it sometimes has medically qualified chairs, works very well in some of the simpler, less legally complex cases.

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

I recognise that the Minister has said that he will go away and consider the matter. He said that he might be able to bring some proposals forward on Report and we look forward to that. However, the argument is quite significant. In the evidence sessions and in Committee, we have had to focus on and think carefully about the issue. We all recognise the seriousness of the matters that the fitness to practise panels will have to deal with; there will be grades of seriousness and grades of consequence. Ultimately we are talking about the trust that we and our constituents have in the medical profession, and the trust that the medical profession has in the process—whether it will be dealt with properly and efficiently and with the requisite understanding. As my hon. Friend the Member for Rugby and Kenilworth rightly said in his intervention, there are things that will be common to all the cases, such as the matter of procedure—in other words, a legal understanding of the way that justice operates and, as Lady Justice Smith said, the need to ensure that there is capacity to have the professional skill and capability to be able to right a judgment.

If we go back to my famous and beloved Venn diagrams, that would be the outer circle. Instead of having another overlapping circle, there would be another circle within that circle for cases that require medical expertise. What we are discussing is where the default should lie. Should the expectation be that there is always a legally qualified chair and the rest should be done through advice from panel members and assessors, including the medical profession; or should the default be that we should not presume that we need the legal expertise or the qualification because we will not always need traditional procedural skills, notwithstanding the commitment to training?

It is clear that because we have sought to indicate that by picking up on where things were already heading with the proposals for pilot, because Lady Justice Smith gave some reasoned and cogent evidence and because the Minister promised to return to this matter on Report, as I hope he will, I could take the opportunity to withdraw the amendment. However, I decline to do so. I  want to test the Committee so that it can be put on the record that we at least held the Government’s feet to the fire. Furthermore, we look forward to hearing how the Minister will avoid a Division on the matter on Report.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 8 Nimrod Review — Statement — Clause 93

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 11:45 am, 22nd January 2008

I beg to move amendment No. 48, in clause 93, page 46, line 14, at end insert—

‘(3A) Rules made under subsection (3) may not require a lay or professional majority.

(3B) An Order in Council may not—

(a) amend subsection (3), or

(b) make any provision that is inconsistent with subsection (4).’.

The amendment would avoid a lay or professional majority on fitness to practise panels. The Committee needs to be extremely careful that it understands the distinction between lay and professional balance on the council, which is a matter dealt with under schedule 8, and lay and professional balance on fitness to practise panels, which is the issue that we are contending with here. The amendment would keep a proper lay and professional balance on fitness to practise panels, particularly when the panel consists of more than three individuals, and would avoid too large a majority either way. The Bill does not seem to provide that guarantee. I would also be grateful if the Minister could give the Committee an idea of how he envisages that point being addressed in rules made, under subsections (2)(d) and (4), by the OHPA, and approved by an order of the Privy Council.

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

We have three problems with the amendment. First, it could preclude a simple majority decision by a panel; secondly, it could artificially inflate the costs of any fitness to practise hearing by requiring the recruitment of additional panellists solely to maintain parity between lay and professional members, and, thirdly, it should be noted that the rules of some of the regulators, such as the General Optical Council, provide for lay majorities on fitness to practise panels, which we do not think is necessarily a bad thing.

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

I shall not press the point. It was not a perfected amendment, but it made the point that we need to be careful not to remove the necessary sense of parity. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 ordered to stand part of the Bill.