Clause 215

Health and Social Care Bill – in a Public Bill Committee at 4:00 pm on 29th March 2011.

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Question proposed, That the clause stand part of the Bill.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

This is a short clause, but it is important and potentially interesting. It deals with the abolition of the Office of the Health Professions Adjudicator. One has to look hard to discover what OPHA is. It is not to be found in the Bill, nor in the explanatory notes or the impact assessment. That is, apart from one line in the table that refers to the £13 million saving that the Government anticipate making as a result of its abolition.

OHPA was a new body that was set up in the light of the inquiry into the activities of Harold Shipman, the GP. It came about as a result of the recommendations of the fifth report of the Shipman inquiry, in which Dame Janet Smith—now Lady Justice Smith—recommended that, to avoid the situation that was exposed by the Shipman case of the General Medical Council’s being perceived in her view to be judge, jury and prosecutor, we ought to move to one whereby there is a separation, as there ordinarily is under the law, between the police, the Crown Prosecution Service and the judge; in other words, between the independent adjudicator and the regulatory body. At that time, the GMC was unhappy and lobbied hard to have the independent body that was intended to oversee its work removed.

In December, at the conclusion of a short review and consultation on OHPA, the Government announced that it would be abolished. The rationale was twofold: first, the Government thought that the GMC had reformed its practices to make them more independent, although how it can be independent of itself is beyond me; and secondly, that costs would be saved, which is significant as the original start-up costs were anticipated to be £10 million. The consultation found that 45% of the respondents agreed that OHPA ought to be abolished, although it failed to point out that 55%, including 35% who were opposed to it outright and the rest who did not express an opinion or were undecided, were not in favour of its abolition. None the less, the Government decided to push ahead, suggesting in a written statement from the Under-Secretary of State for Health, the hon. Member for Guildford (Anne Milton) that the savings were worth while and that the GMC would be able to adjudicate independently and impartially.

At that time—again, this went unreported—the then chairman of OHPA said:

“OHPA offered genuinely independent adjudications, in a reformed system… Such a system would have assured the public that their protection from those who are not fit to practise medicine…was in the hands of a wholly independent tribunal. Given that this was a key recommendation of the Shipman Inquiry, it is regrettable that the Government has decided not to proceed with the OHPA programme.”

I will raise two issues that come out of that and ask the Minister two questions. The first is whether the Minister is entirely certain that the financial rationale, which seems from the consultation to be clearly the principal rationale for the abolition of OHPA, was adequately scrutinised. A submission from OHPA to the inquiry  stated that £10 million would be saved every year as a result of rolling up into one adjudication body the adjudication hitherto conducted by the GMC, the General Optical Council and the relevant bodies for pharmacy and nursing. It thought that a united body would save £10 million, which was the cost of the initial set-up. Is the Minister convinced that the financial argument makes sense?

More importantly, OHPA’s submission concluded that, had it gone ahead and been maintained by the Government, it would have addressed the legitimate

“public concern and lack of legal soundness inherent in a system where the disciplinary body bringing the proceedings is also responsible for judicial decision-making”.

Is the Minister entirely certain and content that allowing the GMC to make adjudications on its members is the appropriate way forward? The GMC has submitted evidence to the Committee in which it supports the Government’s decision to scrap OHPA. Having already said that OHPA was not a good idea, such evidence should not be a great surprise to us. In its evidence it says that it has addressed the problem by introducing a degree of separation between the investigation and adjudication stages.

Photo of John Pugh John Pugh Liberal Democrat, Southport 4:15 pm, 29th March 2011

The hon. Gentleman is making a good case of sorts, but will he not recognise three points? First, some adjudication bodies are also disciplinary bodies. Secondly, the GMC has made substantial attempts to change itself with increased lay representation. Thirdly, and this is an empirical point, there are more cases and evidence of the GMC doing that—in other words, more people have been up before the GMC and treated fairly severely than hitherto. Some progress has been made, so the Government’s case that reforms are in place now and that the Shipman case could not easily be repeated is relatively valid is it not?

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

I do not dispute that the GMC has clearly addressed the matter and was addressing it before OHPA was established. It may be accurate to say that the GMC is able to do this. It is certainly true that other bodies regulate themselves and prosecute their members in the event of their transgressing. However, the key point is that the Shipman inquiry did point to this as a key weakness in the adjudication and regulation of the medical fraternity in this country. We all remember the Shipman case—it was a particularly awful chapter in the history of medicine in this country. When Lady Justice Smith came to the previous Government with a firm recommendation that the split was a prerequisite of having an efficient and effective safeguard for patient interests and efficient policing of the medical fraternity, it was a pretty brave leap. To describe that in just six or eight lines of a Bill with 300 clauses probably does not pay due deference and respect to the magnitude of the issue.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I am grateful to the hon. Gentleman for giving us the opportunity to debate the clause and me the chance to address his concern that no impact assessment was done on the measure. An impact assessment was done but it was separate from the main one—

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I will reread Hansard and I apologise to him if it turns out that he did not say that. My understanding of what he said is that no separate impact assessment was done and that there was a single line reference, which was a saving, in the main impact assessment.

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

Order. The rule of the game in this Committee is that the person who is on their feet is speaking and the other Members are listening. If any Member wants to intervene, they can do so, but they cannot have a conversation over the Committee.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

I am grateful to you, Mr Hood, and to the Minister for allowing me to intervene. What I said was that in the impact assessment for the Bill, there is no mention of the measure, save for the line in the table. An impact assessment was conducted as part of the Government’s consultation and subsequent report, but it, as I suggested, did not reflect the volume of savings that might have resulted from the introduction of the measure.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

We have established that an impact assessment was done for the Bill, in which there is a passing reference; there is then a 23-page impact assessment that deals solely with the issue, which is available on the Department of Health website. I commend other hon. Members to read it—the hon. Gentleman has clearly made such a study of it. I will try to answer his questions and offer him the assurances that he seeks.

In presenting his concern, the one thing that the hon. Gentleman has overlooked is a change the Bill makes that provides for a new responsibility for the Council for Healthcare Regulatory Excellence, whose name and some of whose functions we are changing. We touched on one of its new functions this morning, when we discussed social care and fitness to practise. The council in its new role will have the function of also being able to refer cases to the High Court if it believes that the decision made by a regulatory body after a fitness-to-practise hearing was unduly lenient. That provides an important new safeguard in the system that is independent of the individual regulator. It is not true to suggest, as the hon. Gentleman did, that the removal by the Bill of a body that has never been set up—OHPA was in the process of being established when we came into office—in some way weakens the arrangements.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

Does the Minister not accept that there is a fundamental difference between a body that is separate from the GMC, and which conducts the adjudication and judges the cases that are brought before it, and another council that may, post hoc, review a decision taken by the GMC and refer it to a higher court?

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

They are different but I think they achieve an important purpose, which is the safeguard that the hon. Gentleman seeks. They ensure that a matter is not solely in the purview of the regulator and that there is another opportunity to look at it. If there are serious concerns, the Council for Healthcare Regulatory Excellence can refer it to the courts.

I need to make a quick correction. I said that this was a new provision in the Bill. In fact, it is an existing power—the safeguard is already there, which we think is important in terms of understanding the arrangements.

The Office of the Health Professions Adjudicator has never been operationally activated. It was established in law in January 2010 and it was not expected to take over its duties from the GMC until April this year. The functions that OHPA was expected to perform will therefore remain with the GMC, the General Optical Council and other regulatory bodies. However, as my hon. Friend the Member for Southport said, there has been quite a significant change in the way that those organisations configure themselves, the involvement of lay members, and so on.

To the question about the legitimate public interest and patient safety, and whether doctors protect doctors and perhaps not the public interest, the answer is clearly no. There is no evidence to suggest that the current GMC-led adjudication arrangements do not properly protect the public. The Council for Healthcare Regulatory Excellence reviews all decisions made by the GMC adjudication panels to assess that, and if it feels there was undue leniency, it can refer the matter, as I said.

Photo of Daniel Poulter Daniel Poulter Conservative, Central Suffolk and North Ipswich

Does the Minister agree that aside from the important strengthening of the lay representation on the GMC, there is also a requirement now for two doctors to sign the forms before someone can be cremated? That allows either doctor to refer to a coroner, which is an important safeguard against one of them behaving inappropriately.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I am grateful to my hon. Friend for highlighting that change, which came out of the Shipman inquiry. It is an important safeguard to have in the system.

The hon. Gentleman also asked about the consultation. It is worth bearing in mind that the Government consulted on options for the office to continue in its current form, for changes to be made to it, or for it to be abolished. The responses to that consultation show that 45% of people said yes to abolition, 35% said no, 4% were unsure, 3% did not answer the question and 13% had no clear preference. Governments have make a judgment based on consultation results; we took the view that, on balance, the decision, with the safeguards that I have mentioned, was the right one to take.

The hon. Gentleman suggested that the measure might be being driven by an agenda of short-term savings. I can assure him that that is not the reason: neither I nor the Government would have accepted that as the rationale for making the change. However, the Government are committed to spending taxpayers’ money well and wisely. Setting up the Office of the Health Professions Adjudicator would have cost between £10 million and £16 million to replicate functions already undertaken by the GMC. We took the view that that was not proportionate.

Photo of Derek Twigg Derek Twigg Shadow Minister (Health)

Could the Minister give us a further breakdown of those respondents who were in favour of abolition?

Photo of Derek Twigg Derek Twigg Shadow Minister (Health)

Of what did that figure comprise?

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I shall make sure the hon. Gentleman receives a note containing that information in due course. That is probably the best thing to do, rather than try to rattle off each organisation that responded and state whether they said yes or no.

I was about to deal with worry expressed by the hon. Member for Pontypridd about patient safety and adjudication decisions, and whether they are, for example, compliant with the Human Rights Act 1998. There is no evidence to suggest that the system of adjudication operated by the GMC and other regulators is not compliant with the Human Rights Act, and case law confirms that the system of adjudication and fitness-to-practise arrangements used by health regulators, which includes a right of appeal to the High Court, does not breach that duty.

Photo of Kevin Barron Kevin Barron Chair, Standards and Privileges Committee

As the Minister might know, I spent nine years as a lay member of the General Medical Council and was involved in both of the governance changes that got it into a shape where there is practically equality in lay membership of the council itself and, indeed, of fitness-to-practise committees. The GMC is not arguing against the change on adjudication except in one area—members of council were in the House at a reception yesterday, and I talked to them. In the area in question, the council took its foot off the pedal. There is a need to change the law to enable it to take action sooner, particularly on doctors who have been convicted of serious offences, but who still have to be heard under current legislation. The law will have to be changed to allow that. Is the Minister willing to meet the General Medical Council and to discuss in some detail the changes that will be needed, if it is to retain that responsibility?

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

Yes, absolutely. That goes without saying, but I am grateful for the opportunity to put it on the record that I or other Ministers will be only too happy to have those discussions to make sure that the system, as we believe it will be, is fit for purpose and offers all the assurances that members of the Committee have been seeking.

With that, unless the hon. Member for Pontypridd, who looks as though he wants to get up again to conclude the debate, I urge that the clause stands part of the Bill. However, I hope that the arrangements made for the Council on Healthcare Regulatory Excellence and the other changes we propose, guided by the consultations, provide the assurances that he seeks.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

I listened carefully to what the Minister said. He said that cost did not drive the decision, but I urge him and other hon. Members to read the Government’s consultation response, which places front and centre the principal rationale for the change as the savings that could be derived and then goes on to refer to the submissions made by various others.

Secondly, what is proposed is not the same as having an independent adjudicator separate from the regulator and the investigating body, as was proposed by Dame Janet Smith, now Lady Justice Smith. That is a very different scenario and governance structure, and I do not believe that what is proposed under the Bill does anything than return us to the status quo ante, albeit perhaps with a slightly changed GMC. The basic point about the requisite safeguards not necessarily being in place if the GMC is acting as judge, jury and prosecutor therefore remains.

Finally, on reading the impact assessment and the Government’s response, I was surprised to find that the submissions made by the individuals and institutions that responded were not published. They were summarised in one page. I therefore ask the Minister to offer us greater reassurance than is provided by detailing who was in favour and who was not. He should publish the submissions, so that we can read in detail who exactly thought the measure was a good idea. After Shipman, Opposition Members do not think that what the Government propose is a good idea.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I shall certainly look into publication. I know that in some consultations participants are asked whether they do or do not wish to have their responses published. Without checking, I do not know the position for certain.

On the question of the GMC acting as judge, jury and prosecutor, the council is looking at how it can enhance the independence of its adjudication and the efficiency of its processes—the processes that it currently operates. It is looking to see how it can go further. The GMC proposes to establish a tribunal-style model of hearings, which will be overseen by a separately appointed president. The objective is a robust, fair and effective system of adjudication for doctors, so the policy question is whether the objective can be achieved without a separate body undertaking adjudication. We think that it can be, which is why we set that case out in the impact assessment.

Regarding the question about full consultation, a summary of responses was published on the website and I will certainly look to publish the details, having checked and satisfied myself that they are all areas where we have permission to do so.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 13, Noes 10.

Question accordingly agreed to.

Clause 212 ordered to stand part of the Bill.