Health and Social Care Bill

Public Bill Committee, 22 January 2008.

Further written evidence to be reported to the House

Schedule 6

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 213, in schedule 6, page 132, line 4, leave out ‘If the Secretary of State so determines’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 214, in schedule 6, page 132, line 6, leave out ‘Secretary of State’ and insert ‘OHPA’.

No. 215, in schedule 6, page 132, line 13, leave out ‘Secretary of State’ and insert ‘OHPA’.

No. 218, in schedule 6, page 133, line 16, leave out ‘Secretary of State’ and insert ‘OHPA’.

No. 220, in schedule 6, page 133, line 19, leave out ‘Secretary of State’ and insert ‘OHPA’.

No. 221, in schedule 6, page 133, line 23, leave out ‘such period’ and insert ‘six months’.

No. 222, in schedule 6, page 133, line 24, leave out from ‘relate’ to end of line.

Stephen O'Brien (Conservative, Eddisbury)

Welcome to another day of our deliberations; it continues to be a pleasure to serve under your chairmanship, Mr. Hood. I believe that we have copies of the Official Report of last Tuesday, when we debated the Ways and Means resolution on the Floor of the House, which relates to this group of amendments. Those hon. Members who are anxious to see the full detail of the arguments should apprise themselves of the record, which will save some time. The amendments seek to secure the operational independence of the office of the health professions adjudicator. As I speak, copies of the Official Report are arriving, and I refer hon. Members to column 796 of the Official Report, 15 January 2008, when we dealt with the Health and Social Care Bill Ways and Means resolution on the Floor of the House.

For the amendments to be complete and effective, the Committee should bear in mind that an amendment removing the Secretary of State’s responsibility for setting levels of remuneration and allowances for the chair and members of the OHPA is also required. With that caveat at the outset, amendment No. 213 would give the OHPA, rather than the Secretary of State, the power to determine whether, how and to what extent it pays or makes provision for the payment of pensions, allowances and gratuities to current or former chairs, or members of the OHPA.

Amendment No. 215 would allow the OHPA to determine the compensation that it would need to award. If the Minister were to smile upon the principle of the amendments—I hope that he has a sunny disposition this morning—an amendment would be needed to line 8 to give the OHPA the power to determine when it is right for a person ceasing to hold office as the chair of the OHPA to receive such compensation.

Amendments Nos. 218 and 220 would remove the power of the Secretary of State to direct the form in which the OHPA keeps its accounts and prepares its annual accounts. I note that amendments Nos. 217 and 219 are grouped for debate immediately after this group. They have a bearing here, and if the Chairman would like me briefly to mention them now, I will do so.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 217, in schedule 6, page 133, line 16, after ‘keep’, insert ‘auditable’.

No. 219, in schedule 6, page 133, line 20, after second ‘the’, insert ‘auditable’.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful. As my points on amendments Nos. 217 and 219 are brief, I will tack them on to my comments on the larger group of amendments under discussion. Amendments Nos. 217 and 219 are consequent to the removal of the Secretary of State’s power over the form of the accounts—I can see why they were in a separate group, as their effect might depend on a vote. I am extraordinarily hopeful that the Minister will smile upon the amendments and therefore this grouping makes sense. The amendments are to ensure that the OHPA keeps auditable accounts.

Amendment No. 221 would make the OHPA produce copies of its annual report within six months of the end of the year. There seems no reason for the period not to be enshrined here, other than to recognise that if the OHPA were unable, for good reason, to produce accounts within the specified period, its remedy would be, first, the force of law, and secondly, applying to have the publication of accounts postponed, although only for a short period. I cannot see why it is not appropriate to put a realistic time on the face of the Bill, as it would rightly reduce the Secretary of State’s power in the area and provide for clearer expectations. Amendment No. 222 would remove the power and discretion of the Secretary of State in the matter.

The General Medical Council is currently independent from Government, and the Government are seeking to remove its adjudication function. While we have discussed whether that is necessary for any reason other than public perception, the amendments deal with a different issue. If the OHPA is to be established, it should be on similar terms to the GMC in order to give it the confidence of the profession and the public. As the Bill is drafted, while the OHPA is independent of Government in, for example, regulating its own procedure—delineated in paragraph 11 of schedule 6—and while those appointments which it does not make itself are overseen by the Privy Council, it should be noted that in terms of its finances it has a duty to report to the Secretary of State. The Committee will remember that in her oral evidence on 8 January 2008, Official Report, column 38, Lady Justice Smith noted that she was “sympathetic” to the GMC’s point.

This measure makes even less sense given that the professions, through fees levied on the GMC and the General Optical Council, will foot the Bill, yet they will have no power over the operational effectiveness and value for money delivered by the OHPA. It is unfortunate that other than my hon. Friends on the Conservative Benches, who, I am pleased to say, were all present, the Minister and the Government Whip, there were no members of the Committee present for the debate on the Floor of the House last Tuesday on the Ways and Means resolution that made this levy possible. I note that the Liberal Democrat spokesman on health, who is not a member of this Committee, was there. I hope that the Committee has had a chance to catch up with the proceedings that took place on that occasion, and I hope that after that debate and these questions the Minister will reflect that the amendments are both appropriate and timely. We need to ensure that we underpin independence and put motivations and incentives in place for the OHPA not only to wish to take responsibility, but to have the chance to deliver on its responsibility in running an independent, but appropriate, organisation.

In addressing the amendments, I hope that the Minister will make it clear why the Bill states that this body should report to the Secretary of State, and I hope that he will also take the chance to explain the revelation made by the GMC during the oral evidence, that it was only in late November last year that the OHPA’s lack of independence was suggested by the Department in negotiations with the GMC.

Sandra Gidley (Liberal Democrat, Romsey)

I will be brief in the hope that I have a voice left at the end of the day.

I understand the spirit in which amendments Nos. 213 to 215 and 221 to 222 have been tabled, and concerns have been raised about the independence of the OHPA from the Secretary of State. I have slightly less sympathy with amendments Nos. 218 and 220, which deal with the form that the accounts will be kept in. Presumably, some public money is involved in the organisation, and it is entirely right for the Government to have some direction over the clarity with which accounts are presented. I realise that amendments Nos. 217 and 219 were tabled to ensure the accounts will be auditable, which was an attempt to achieve clarity in another way, but it is right that, through the Secretary of State, Parliament has a chance to scrutinise the matter.

Ben Bradshaw (Labour, Exeter)

As the subject will probably take up much of this morning’s proceedings, as well as addressing the points raised by the amendments tabled by the hon. Member for Eddisbury, I want to make a few general remarks about the independence of the OHPA, which is a theme that runs though this morning’s clauses, schedules and amendments.

It is important that the Committee remembers that the status of such organisations is not defined by their name or definition, but by the powers given to them by Parliament. As a result of the powers that we intend to give the OHPA in the Bill, it is likely that the OHPA will be defined by the Office for National Statistics as an executive non-departmental public body, which is a type of arm’s length body. The GMC’s powers and the proposed powers for the OHPA are similar in many respects—for example, as the hon. Gentleman has acknowledged, both bodies have the power to make rules that are then subject to approval by Privy Council negative resolution procedure.

What does that mean in terms of independence? An ENDPB does not have to refer any of its professional judgments back to the sponsoring Department; it does not have its professional decisions overturned by the Department or Ministers; it does not have to explain to the Department why it has made any professional decision; and it does not have to give the Department details of its professional decisions. The key aspect of the independence of the OHPA is its panels and their independence of judgment. There is total independence in the panels’ professional decisions, and Ministers will have no power to interfere in any adjudication decision made by them.

As the hon. Member for Romsey has mentioned, however, the OHPA is a public body that will be set up with public money. Although it will mostly be funded by the professionals who use it, it is likely to receive some ongoing public money, which means that clear lines of accountability to Ministers and Parliament are important. The Committee and the GMC have expressed concerns, which were raised in the debate on the Ways and Means resolution, about having proper controls over the OHPA’s costs. That is precisely why we expect the OHPA to be an ENDPB, which is a tried and tested model that will allow the OHPA complete independence from Government in every aspect of the adjudication function and the Secretary of State and the Treasury to ensure that the fees charged are reasonable.

We could refer to plenty of models of successfully operating ENDPBs—for example, the Independent Police Complaints Commission and the Financial Services Authority. In the area of health, other examples include Monitor, the Appointments Commission, the Council for Healthcare Regulatory Excellence and the Healthcare Commission itself. All those bodies have demonstrated their independence from sponsoring Departments in decision-making processes.

The Secretary of State will have the power to make directions in a limited sphere and only with regard to payments and loans made to the OHPA by the Secretary of State. Let me state this clearly because it is one of the assurances that the leaders of the GMC sought: that is the only power of direction in the Bill that the Secretary of State has with regards to the OHPA; they will not be given a general power of direction, and the power to direct in schedule 6 is strictly limited to making payments and loans to the OHPA. As recently as last week, I had detailed discussions with the leaders of the GMC, who were reassured by that. The hon. Member for Eddisbury has referred to Lady Justice Smith’s support for the expressions of concern about independence, but I recall that when we asked what alternative Lady Justice Smith favoured, she did not suggest one, which was also true of the GMC in its evidence.

On appointments, GMC lay members are appointed by the Privy Council, although in practice, that is delegated to the Appointments Commission. As recommended in our White Paper, “Trust, Assurance and Safety”, that is being altered, so that all members of the GMC are appointed by the Privy Council. The Bill provides for the Privy Council to appoint the chair, the non-executive members and the first executive members, and it is expected that the Privy Council will make use of the Appointments Commission for those positions. In that respect, there will be no difference between the appointment of GMC members and the OHPA members. I hope that that is the reassurance that hon. Members are seeking on the independence of the appointments system.

The amendments seek to remove the power of the Secretary of State to make determinations on remuneration and allowances for chairs and members, pensions and the form of the OHPA’s accounts. For the reasons that I have just described, it is important that the Secretary of State has those powers. In the debate on the Ways and Means resolution, Opposition Members emphasised the importance of proper financial oversight, and one of the main concerns at the GMC was that the level of fees would not simply escalate.

Amendments Nos. 221 and 222 specify the time scale with which the accounts should be laid, but we do not think that the independence of the OHPA should be fettered in that regard. Amendments Nos. 217 and 219 concern auditability. We recognise that there needs to be proper financial propriety and accountability, but the accounts of public bodies are auditable simply by the virtue of their existence. In addition, one of the mechanisms by which that is guaranteed by the Bill is the role of the Comptroller and Auditor General in carrying out an audit of the annual accounts. That means that all the OHPA’s financial affairs will be subject to audit, and nothing will be exempt from that requirement. We do not think that the amendment is necessary, so I ask the hon. Gentleman to withdraw it.

Stephen O'Brien (Conservative, Eddisbury)

It is interesting to have the report on the further discussions that the Minister had with the GMC. I am glad that he had them, not least in the light of the comments made by Lady Justice Smith during the oral evidence session. I fully accept his general statement of principle that the name of a body does not describe whether it is independent—it is the powers granted to it, and the accountabilities and authorities that are contained within its strategic and operational procedures. I also accept that nobody is arguing for an alternative model and that the issue concerns the current framework.

Once one accepts that the OHPA will come into existence and that it will be carved out of the current GMC, it becomes important as a matter of principle to decide, having established that model, the expectations of its true ability to be unfettered. Regardless of how unfettered such a body might be, if public money is used, there must be accountability, not least towards moneys, and the Liberal Democrat spokesman addressed two of the amendments on that basis.

I am disappointed that the Minister has decided that amendment No. 221, which would make the OHPA produce copies of its annual accounts within six months of the year end, is over-fettering. That seems to be the one area where one should lay out the expectations on being accountable for public money and put an expectation of time upon that. In many ways, that gives the cover for all the rest to be much more independent, because one would have an approximate time period between the operations and the accountability by ensuring that accounts were produced and presented within six months, which is a really tight time frame in accounting terms.

I am therefore not persuaded that the Minister has demonstrated that there is a true prescription for independence from Government. We should not underestimate how much the GMC has delivered on success. That is a different approach with the OHPA than has hitherto been the case, and it has come about not because the GMC was regarded as having failed, but to retain the best parts of what it has been able to deliver in this area, including independence from Government. There is an opportunity to maintain trust with the public and to retain the confidence of the profession. It is vital that we have that complementariness in the process. On that basis, I will put the amendments to the test, including amendments Nos. 217 and 219 if that is acceptable, by seeking to divide the Committee on amendment No. 213.

Jimmy Hood (Labour, Lanark and Hamilton East)

I have already indicated that it is permissible to discuss amendments Nos. 217 and 219 with this group of amendments.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 216, in schedule 6, page 132, leave out lines 19 to 22.

This is a probing amendment, so I shall not trouble the Committee with a Division. It is useful to note that members of the OHPA can be members of the civil service pension scheme, which further highlights the closeness of the OHPA to the Government. I am also concerned that the Government are voting yet another liability on the civil service pension scheme. As the Committee will be aware, the Chief Secretary to the Treasury is still too embarrassed to reveal to the House the state’s liability for public sector pensions. The estimate is a year overdue, but actuarial firm Watson Wyatt estimates that the liability today could be as high as £960 billion. Given the size of the liability, I am concerned that the Bill puts no limit on the sum that the Minister for the Civil Service might determine.

As I noted in the debate on the Ways and Means resolution, the OHPA is effectively a tax-generating body through the combination of its fee structure and its dependence on the Government. In it, we see doctors, opticians and associated professionals funding a Government body directly. Not only are there no effective checks and balances on how the OHPA spends its money—the Committee is effectively examining a blank cheque that the Government are writing but which the professionals will have to pick up—but what is there to prevent the Minister for the Civil Service from squeezing extra money out of the OHPA, and consequently doctors, to pour into the public sector pensions black hole?

Ben Bradshaw (Labour, Exeter)

As I am sure the hon. Gentleman is aware, it is custom and practice for executive non-departmental public bodies to be able to join the civil service pension scheme, which does not mean that their employees become civil servants. The problem with the amendment is that it removes the requirement for the OHPA to make payments to the Minister for the Civil Service, although it would be able to receive benefits from the civil service pension scheme, which it could join by virtue of paragraph 15 without being required to make a payment into it. In our view, the amendment is flawed, and it is perfectly normal for people who work for ENDPBs to be eligible to join the civil service pension scheme.

Stephen O'Brien (Conservative, Eddisbury)

I have said that the amendment is probing, and the point is on the record. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 223, in schedule 6, page 133, line 42, at end insert—

‘(c) The regulatory bodies.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 224, in schedule 6, page 134, line 5, after ‘Council’, insert ‘and health regulators’.

Stephen O'Brien (Conservative, Eddisbury)

Amendment No. 223 seeks to include the regulatory bodies in the list of persons to whom the OHPA must send copies of its annual accounts. Amendment No. 224 gives the regulatory bodies, in addition to the Privy Council, the power to direct the OHPA as to matters dealt with in the report. The amendments do not establish what we are truly seeking—effective control of the operating costs of the OHPA by the bodies, and ultimately the professions, which fund it. It would be wrong of the Committee to propose a cap on OHPA spending, because it must have the resources to adjudicate fitness-to-practise cases in a timely and effective manner. Having said that, there need to be more effective checks and balances to potential profligacy than the Bill currently provides. As the Committee knows, full GMC registration on the medical register will rise to £390 a year with effect from April 2008, having been frozen at £290 per annum since 2002, and GOC registration stands at £169 pounds per annum. Those costs will presumably go up again given the creation of the OHPA, because while the adjudication costs should remain substantially the same, two bodies invariably cost more than one to run. That is not rocket science, and it would be helpful for the Minister to indicate by what amount he expects the fees to escalate.

During the oral evidence-taking session, Sir Graeme Catto noted that while, in his opinion, the GMC did not think that the move to the civil standard of proof would have, in terms of numbers

“any significant effect at the serious end of the spectrum...There may be an impact on doctors whose practice has failed to a lesser extent”

although,

“any impact is likely to be small”.

Will the Minister tell the Committee what sort of increase the Department is expecting in the number of adjudications, as that obviously plays into any debate on the costs of the OHPA?

In its written evidence, circulated to the Committee yesterday, the GOC noted

“the provisions of paragraph 19 of Schedule 6 as to financial accountability. There are provisions elsewhere in the Bill allowing representations to be made to OHPA regarding the fees paid to OHPA by the regulators. However, there is no mechanism for the regulators to take further any concerns they may have over excessive expenditure (hence higher fees) should those representations not be met with an adequate response.... We acknowledge that OHPA must be independent of, and not accountable to, the regulators. There should, however, be a mechanism to ensure proper oversight of OHPA’s expenditure that takes into account the views of the regulators.”

In support of the amendments, it also said:

“We would expect the regulators to be provided with OHPA’s annual accounts and business plan, and to be invited to provide comments on those documents to the Secretary of State. We would welcome these arrangements to be provided for in the Bill. If they are not to be provided for in the Bill, we would expect to see these in the regulations to be made under new clause 7(1)”.

Would the Minister now tell us what the running costs, as a distinct item from the adjudication costs of the OHPA, will be? Will that come out of the fees, or from a Government grant? In the debate on the previous group of amendments, the Minister said that it would be, at least in part, a publicly funded body. I hope that the amendment and a direct question will flush out from him precisely what will be the split between those costs that will be recoverable through fees and those that will effectively be a subvention on the public purse. I also hope that there are sustainable expectations that it will remain a public subvention rather than something that will be clawed back from doctors themselves over time, notwithstanding that in our view the Government have not established that the OHPA is effectively a public body rather than an independent body.

What powers will the profession and the current councils have over value for money issues with the OHPA? What protection will the profession have from continual fee hiking? What guarantees are there that the Committee is not voting for a blank cheque and what increase in adjudications will the move to the civil standard bring? Some questions about the Privy Council, to which the Minister alluded in his more general remarks at the beginning of the previous group of amendments, may be more appropriate for a stand part debate. Therefore, I move the amendments on the basis of the arguments just advanced.

Sandra Gidley (Liberal Democrat, Romsey)

I have no problem with amendment No. 223. Given the arm’s-length, but hopefully in some way joined-up, relationship between the regulatory bodies and the OHPA, it is important that the regulatory bodies receive the reports.

I have slightly more difficulty with amendment No. 224. I agree with the hon. Gentleman that there needs to be some mechanism to scrutinise spending. He mentioned the increase in fees of the GMC and I know from my own profession that provisions in the section 60 order were responsible for a big fee increase that did not go down well among the profession. I assume that it is the same with doctors. Having said that, the mechanism advanced by the hon. Gentleman is rather over-prescriptive and although he wants greater financial clarity, it seems that the amendment as drafted provides room for professional games playing.

Ben Bradshaw (Labour, Exeter)

It is worth reminding the Committee at this stage that the genesis of the OHPA was concerns resulting from the Shipman inquiry about the independence of the adjudication system from the medical profession. The hon. Gentleman seemed to be more concerned about independence from Government. I warn him that in pushing the amendments—I will come back to this in a moment—he is taking us back into a sphere where the organisation would not be as independent from the profession as I am sure he would want it to be.

On amendment No. 223, which is about sending a copy of the report to the relevant regulatory bodies, clause 100 already requires the OHPA to make public information relating to it and the exercise of its functions. It is anticipated that, in line with best practice, the publication of its annual reports will be carried out in that manner. We do not think that requiring it additionally to send its reports to the regulatory bodies is necessary.

Amendment No. 224 seeks to confer the power to direct the content of the OHPA annual report on to the regulatory bodies. We do not think that it would be appropriate for the regulatory bodies to direct the OHPA, which we are setting up to be independent. It is important that the OHPA’s decisions are seen to be made in an independent manner. The whole point is to set up a body that is independent from the regulatory bodies and therefore from the professions. Even if that problem could be overcome, we do not think that it would be appropriate for the regulators that use the services to say what information the OHPA should provide in its annual report. Although the regulators may use the OHPA services, it should not be accountable to them for how it discharges its adjudication functions per se. That is dealt with through the power of appeal to the High Court that the regulators have if they are concerned that the OHPA is making decisions that are too lenient. On those counts I hope that the hon. Gentleman is reassured.

On fees, which we discussed at rather more length than most of us were expecting during the debate on the ways and means resolution, I indicated that the estimated current cost of the General Medical Council’s adjudication is around £11.5 million a year. That would be apportioned between the regulatory bodies using the OHPA’s services. However, I went on to add that the GMC is currently engaging a firm of financial advisers, which is undertaking an independent assessment of the costs, and it expects that report to be available by the end of January. We shall look at that very carefully. As I also made clear in the ways and means debate—and this was one of the GMC’s concerns—the Government have said that we will meet the set-up and transitional funding costs of establishing the new organisation. We will also help out where High Court referrals could create a potential burden, such as when the appeals courts overturn a decision. We do not think that it would then be fair to expect those costs to be met by the GMC, the equivalent organisation or their members.

If there is a sudden increase in costs—one could imagine a Shipman or equivalent type of inquiry—there is a power in the Bill for the level of fees to be varied throughout the year, for them to be reviewed and for the regulatory bodies to appeal against decisions. The fee setting will also be subject to full consultation when the regulations are discussed.

Stephen O'Brien (Conservative, Eddisbury)

The Minister said that the report is due by the end of the month, and I hope that it will be available to members of the Committee, as much as anybody else, by the time we get to Report. That might be quite instructive. I think that I have made the points that are important to highlight, so on that basis, I beg to ask leave to withdraw the amendment.

Ben Bradshaw (Labour, Exeter)

I beg to move amendment No. 94, in schedule 6, page 134, line 6, at end add—

Stephen O'Brien (Conservative, Eddisbury)

I am a bit surprised to see this amendment now. Perhaps it was an oversight. I do not want to embarrass anybody by saying that they need to own up to that, but there have been a tremendous number of changes to the use of seals in terms of both public and private limited companies. I dare say that, for an organisation such as this, this may be more symbolic than necessarily being available in order to bind the body. If there is something much more legally significant than appears in this simple amendment, I hope that the Minister will make us aware of it.

Stephen O'Brien (Conservative, Eddisbury)

I promised a short debate on the schedule, Mr. Hood, and I would not want to disappoint you. The Privy Council has various powers under schedule 6, notably the appointment of the chair, non-executive members, the first executive members, removal of members and regulations concerning those responsibilities. While the explanatory notes state, in relation to the Council for Healthcare Regulatory Excellence, that:

“The Privy Council and the Secretary of State may, if they wish, delegate the selection process to the Appointments Commission”,

they make no mention of either the Appointments Commission, or the commissioners’ code of practice in relation to OHPA appointments. Does the Minister agree that the councils should have a right of recommendation to the Privy Council for executive and non-executive members, rather than the power of recommendation lying solely with the Department? Can he also clarify the actual process that the use of “Privy Council” signifies in schedule 6? That would be a helpful clarification before we decide whether the schedule should stand part.

Ben Bradshaw (Labour, Exeter)

In response to the last question, the reason for that system is that it most closely replicates the existing system of appointments to the GMC. The OHPA will be the UK-wide body, hence we have the Privy Council route; the Privy Council covers the whole of the UK. The professions, including the GMC, were concerned that that should be the case. As I said earlier, we have included provisions in schedule 10 that allow the Privy Council to delegate its powers of appointment regarding the board members, through directions. We have done that following discussions with the Privy Council and I would fully anticipate that that would be the case.

Schedule 7

Sandra Gidley (Liberal Democrat, Romsey)

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.

Ben Bradshaw (Labour, Exeter)

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.

Sandra Gidley (Liberal Democrat, Romsey)

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.

Ben Bradshaw (Labour, Exeter)

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)’.

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.

Ben Bradshaw (Labour, Exeter)

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.

Ben Bradshaw (Labour, Exeter)

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.”’.

Jimmy Hood (Labour, Lanark and Hamilton East)

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

Ben Bradshaw (Labour, Exeter)

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

Stephen O'Brien (Conservative, Eddisbury)

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?

Ben Bradshaw (Labour, Exeter)

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

Clause 93

Stephen O'Brien (Conservative, Eddisbury)

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?

Ben Bradshaw (Labour, Exeter)

Iffy.

Stephen O'Brien (Conservative, Eddisbury)

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.

Sandra Gidley (Liberal Democrat, Romsey)

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.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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?

Sandra Gidley (Liberal Democrat, Romsey)

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.

Ben Bradshaw (Labour, Exeter)

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.

Sandra Gidley (Liberal Democrat, Romsey)

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.

Ben Bradshaw (Labour, Exeter)

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.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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.

Ben Bradshaw (Labour, Exeter)

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.

Stephen O'Brien (Conservative, Eddisbury)

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.

Stephen O'Brien (Conservative, Eddisbury)

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.

Ben Bradshaw (Labour, Exeter)

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.

Stephen O'Brien (Conservative, Eddisbury)

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.

Clause 94

Stephen O'Brien (Conservative, Eddisbury)

We tabled an amendment on the clause, but it was not selected. I shall not stray from the clause stand part debate, but I would be grateful if the Minister could untangle the circularity that caused much concern and, indeed, mirth, during the oral evidence session with Lady Justice Smith. Under clause 93, a chair must be selected from the lay or professionally qualified members, and additional members must be selected from the professionally qualified list, which is defined as

“the list of persons eligible to serve as professionally qualified members provided for by section 94(1)(b)”.

As Lady Justice Smith rightly said, anybody examining the Bill moves to clause 94(1)(b), which states that those people are

“persons eligible to serve as professionally qualified members”.

That has a certain familiarity about it. As she so accurately said:

“Around we go in a circle.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]

I had therefore expected a Government amendment so that we could get rid of that circularity. The last thing that we want to do is pass any law that will be held up as a laughing stock by those who have to operate it.

Ben Bradshaw (Labour, Exeter)

I have been advised that clause 93 refers to the professionally qualified members list as being those eligible to serve as provided for in clause 94. Clause 94(3) allows for rules to specify the requirements that a person must meet to be on that list, so the definition is not circular and we do not believe that a change is needed.

Clause 96

Sandra Gidley (Liberal Democrat, Romsey)

I want to pose a few questions to the Minister on legal assessors, which bring us back to the debate that we had on amendment No. 204. I am curious about what assessment has been made of the cost and effectiveness of legal assessors and how it would compare with a system in which there was automatically a legally appointed chair. Bearing in mind the arguments about time made by Lady Justice Smith, I wonder how the decision to have legal assessors has been arrived at. Some clarity about costs and effectiveness would be helpful in informing our decision, because there is no doubt that we shall return to the matter on Report.

Stephen O'Brien (Conservative, Eddisbury)

I, too, would be interested in answers to those questions. Also, following our debate on amendment No. 204 to clause 93, which to my great surprise and disappointment the Government did not feel minded to accept, we know that the Government do not accept that there will be a legally qualified chair. Given that, we need to understand whether legal assessors will be on the fitness to practise panels for their whole duration, or whether they will be ad hoc, popping in and out. That is significant in deciding what we might return to on Report, so I should like to hear the Minister’s views on the importance of access to legal advice and qualified, skilled people.

Ben Bradshaw (Labour, Exeter)

I am grateful to the hon. Lady for raising the matter. I did not make an argument about costs in our earlier debate on amendment No. 204, which would have required all panels to have a legally qualified chair. To have that requirement and a requirement for legal assessors to be available would be unnecessarily duplicative and add costs. I think that that was one of the General Medical Council’s concerns.

In response to the hon. Lady’s question, we have not assessed the current or future costs of the legal assessors system, but we shall be doing so along with our assessment of the costs of a requirement to have legally qualified chairs. I hope to be able to say a little more about that on Report.

Clause 98

Sandra Gidley (Liberal Democrat, Romsey)

This clause specifies when a hearing will be made in private. Concerns were raised by the British Medical Association about the new provisions because health cases are currently heard in private. Will the Minister clarify under which circumstances a hearing may be held in private and whether that would be for health cases only or whether there would be a trigger point? I assume that that has to be decided case by case by somebody: who would make that decision and what framework would be available for them following that decision? While we all believe that openness and clarity are important in such cases, there are occasions where that has to be balanced against sensitive information that may be relevant to the individual. I am not clear how that balance will be achieved.

Ben Bradshaw (Labour, Exeter)

We expect the future arrangements to replicate the current ones, which, as the hon. Lady is probably aware, provide for hearings to be held in private under particular circumstances, such as for witness evidence to be protected, or for special arrangements to be put into place due to age or vulnerability. In formulating those rules, the OHPA will, of course, be informed by the current position and will to have to pay careful attention to human rights. It will also have to consult widely, including with the existing regulators on its proposals on that very important area.

Clause 101

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 238, in clause 101, page 50, line 7, after ‘seek’, insert ‘, and take account of,’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 225, in clause 102, page 50, line 27, at end insert

‘, and respond to the views of’.

No. 206, in clause 102, page 50, line 37, at end insert—

‘(3A) Before making rules the OHPA must publish a response to its consultation as set out in subsection (3).’.

No. 227, in clause 102, page 50, line 37, at end insert—

‘(3A) Before making rules, the OHPA shall respond to any representations made to them—

(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and

(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.

No. 226, in clause 102, page 50, line 39, at end insert—

‘(4A) Before approving rules, the Privy Council must note the representations received by the OHPA during the consultation as set out in subsection (3).’.

No. 228, in clause 102, page 50, line 42, at end insert—

‘( ) Before approving rules the Privy Council shall respond to any representations made to them—

(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and

(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment No. 238 is simple, because the clause as currently drafted, states the OHPA must

“from time to time seek the views of”

various bodies. While that is fine, I want to insert the words “and take account of”, to strengthen the clause. There are too many consultations in which the people who are consulted feel ignored. The amendment strengthens the position of the consultees.

Amendment No. 225 seeks to achieve a similar aim with a different wording. I would rather listen to the arguments of the hon. Member for Eddisbury on the remaining amendments, about some of which I was slightly curious about why he had tabled them.

Stephen O'Brien (Conservative, Eddisbury)

I am slightly concerned when the hon. Member for Romsey says that she is curious about some of the drafted amendments: it sounds as if she is limbering up for not supporting us in any vote. I am sure that that is not true and that I will be able to persuade her. The clause as drafted makes the OHPA seek the views of the groups mentioned, and as the hon. Lady mentioned, her amendment makes the OHPA take account of such views.

Amendments Nos. 225, 206, 227, 226 and 228, which we have tabled, all amend clause 102. They seek to strengthen the consultation process by ensuring a full and public response from the OHPA to any consultation on rule changes. The amendments would require the published response to detail where specific views have been expressed by the Council for Healthcare Regulatory Excellence or the regulatory bodies, and that would also strengthen transparency in decision making by the OHPA. Amendments Nos. 226 and 228 specifically relate to the role of the Privy Council—this may be the point that the hon. Lady sought to have elucidated—given that it has to approve the rules because of the way that we have a trans-internal national debate.

Sandra Gidley (Liberal Democrat, Romsey)

My curiosity was piqued by the fact that I have a hazy understanding of what the Privy Council does. In my own regulatory body, I am frequently told that we must do things because the Privy Council has told us to. I have spoken to a number of Privy Councillors who say, “I don’t know anything about that.” I have looked on the Privy Council website and it is very obscure as to who actually advises the Privy Council. It seems to be a back-door method by which the Department of Health can impose its will. If the measure is aimed at greater clarity in Privy Council decision making, I fully welcome it. I have had some difficulty in tracking the process of Privy Council decision making because the decisions do not seem open to any public scrutiny.

Stephen O'Brien (Conservative, Eddisbury)

It would stray beyond the scope of the amendment to give even my extraordinarily limited understanding of the workings of the Privy Council, other than to recognise that, as I understand, “Privy” is not intended to signify that it should be withheld from scrutiny and accountability when done in the names of us all. It is a council whose first and primary loyalty is its adherence to the monarch. Because of our constitutional arrangements, the sovereign powers of law making are in Parliament rather than with the monarch, and it is effectively a form of delegated administrative implementation. Therefore, the Privy Council always acts upon constrained and tight legal advice. That is as far as I dare to take it, without getting into a debate.

The amendments were deliberately designed—and I think that this is the satisfaction that the hon. Lady seeks—to require the Privy Council to respond to any representations made by the two regulatory bodies, whose registrants are covered by the OHPA. If the Privy Council cannot give such a public statement, through this it would have the power to direct others to make statements on its behalf, or indeed through the Department. The main point is that there is transparency and accountability through the publication of these matters.

The amendments will help to ensure confidence in the new body, by adding much greater transparency to its decision making process for patients, the public and indeed doctors. It will ensure that there is clarity about any rule changes and those reasons will, I think, be critical—I dare say that that is not a point of contention. It is also important for the OHPA to ensure that it fully considers the views of the regulatory bodies that have long-standing experience of dealing with adjudication in fitness to practise cases, and have the primary interest in the effective application of their own standards.

Ben Bradshaw (Labour, Exeter)

This, and the next couple of clauses deal with accountability, consultation and patient and public involvement. It may be helpful if from the outset I remind the Committee about the extent of patient and public involvement in the OHPA.

There will be lay members on its board and, under clause 93, there will always be a lay member on its hearing panels. Under clause 100, the OHPA will be required to keep the public informed of its activities and, under clause 101, it will have to consult. Under clause 102, it will have to consult on drafts of its rules—specifically with bodies that appear to represent the interests of patients and other persons whom it considers appropriate, including regulatory bodies.

The amendments seek to address those matters in a number of specific ways. I stress that, as an executive non-departmental public body, the OHPA will be expected to follow best practice on consultation as set out in the Government’s code of practice. Criterion 4 of that code states that feedback should be given

“regarding the responses received and how the consultation process influenced the policy.”

Furthermore, specific statements within the criterion cover how responses should be analysed with particular attention given to representative bodies. The consultation should state when and where the summary responses will be published, an explanation should be given of how to respond to specific questions, and information should be provided on themes not covered by the question. The code of practice has proved popular with stakeholder organisations who regularly participate in consultations. The code has also been used as a model by other public sector bodies in the UK.

Amendments Nos. 226 and 228 place a requirement on the Privy Council to note representations made to the OHPA by the relevant regulatory bodies. I have already mentioned that under clause 202 there is a requirement for the OHPA to consult with other bodies, including regulatory bodies. The difficulty I have with the amendment goes back to something I said earlier: it moves away from the OHPA being independent from the professions and the regulatory bodies who use its services. The amendment does not suggest the independence that we all want for the OHPA, particularly if further representations are allowed. In addition, by providing the regulators with a secondary pathway to make representations on the rules, the consultation process is undermined because it would exclude other parties specified in legislation and others who may have responded. Any modification to the rules will be on the basis of discussions between the OHPA and the Privy Council.

In response to a question from the hon. Lady, the Privy Council plays a role in respect of certain statutory regulatory bodies and other bodies incorporated by royal charter that cover a number of professions. It also plays a role in the world of higher education. I learned something new in this briefing because in my day the President of the Council was also the Leader of the House. Now, apparently the President of the Council is Baroness Ashton.

Stephen O'Brien (Conservative, Eddisbury)

There are still a number of concerns. The Minister suggested that the amendments would take us in the opposite direction to the independence that, as he said, we all want to achieve for the OHPA. My concern is that he is not necessarily seeking to achieve the independence that I have in mind, so if the hon. Member for Romsey does not press her amendment to a vote, I seek leave to have our amendment No. 227, as an indicator, put to the vote separately.

Sandra Gidley (Liberal Democrat, Romsey)

I take on board the Minister’s comments, which highlight the ways in which the OHPA is accountable, but I still have concerns so I am happy to support amendment No. 227.

I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this, we may discuss new clause 12—Duty of co-operation with council for healthcare regulatory excellence —

‘The OHPA shall have a duty to co-ordinate its activities, and share information, with the Council for Healthcare Regulatory Excellence.’

Sandra Gidley (Liberal Democrat, Romsey)

New clause 12 is a simple motion, which would require co-ordination between the OHPA and the CHRE. In practice, I am fairly sure that the bodies would communicate anyway, but the thrust of regulation appears to be to try to streamline and unify the mode and style of regulation. In the briefing that the CHRE provided to some of us, it said that it expected the procedures of the new body and those of the regulators to be harmonised over time, where appropriate, so in the interests of overall best practice, it would be helpful to impose a duty on both the OHPA and the CHRE to ensure that the whole matter is joined up and that any changes are made with the maximum exchange of information.

Ben Bradshaw (Labour, Exeter)

It seems that the intention of the motion is to extend the function of the CHRE to cover the performance of the OHPA, but it is based on the misapprehension that the OHPA is a regulatory body and, therefore, subject to oversight by the CHRE. The OHPA is an independent body with statutory functions to adjudicate on matters of fitness to practise referred to by the GMC and, at a later date, the GOC, which will provide the public and the professions with the reassurance that was called for as part of the Shipman inquiry. The CHRE’s functions, which are set out in the National Health Service Reform and Health Care Professions Act 2002, are

“to promote the interests of patients and other members of the public in relation to the performance of their functions by the regulatory bodies...to promote best practice”—

in professional regulation—

“to promote co-operation between regulatory bodies...to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to”

such principles. The Bill states:

“The main objective of the Council”—

the CHRE—

“in exercising its functions...is to promote the health, safety and well-being of patients and other members of the public.”

The CHRE does not have a remit to ensure that other bodies co-ordinate their activities with it, and as such, it would not be appropriate to impose such a duty on the OHPA. However, clause 102 states:

“Before making rules the OHPA must consult”

with a range of interested parties, including the CHRE, because it has oversight of matters relating to regulators, bodies representing the interests of patients and any other persons whom the OHPA considers appropriate.

We feel that those provisions are sufficient to ensure that the OHPA consults the CHRE, and in that light, I urge the hon. Lady to withdraw the motion.

Sandra Gidley (Liberal Democrat, Romsey)

The OHPA plans to oversee only the medical and optical professions, and in time it would seem logical to move other professions to a similar system. It seems strange to have some professions regulated in one way and others in another. As the CHRE has oversight and frequently brings the different regulatory bodies together, the new clause would have created a useful dialogue. We will review the motion.

Clause 102

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 49, in clause 102, page 50, line 38, leave out subsections (4) to (6).

The amendment would leave out subsections pertaining to the Privy Council and is a probing amendment on the role and activity of the Privy Council, a point mentioned already. The memorandum on delegated legislation notes that Privy Council approval enables the detailed scrutiny that is required from these rules and regulations. Will the Minister detail how that scrutiny will work in practice and, in particular, how the regulatory bodies can influence that scrutiny? While the memorandum notes that this mechanism of delegated legislation has been selected to ensure consistency with the rule-making powers of all the regulatory bodies, we are dealing with a slightly different case here as this is a new body being established by the Government and somewhat distinct from the grass roots of the profession.

Ben Bradshaw (Labour, Exeter)

The proposal simply replicates the current arrangements for the rule-making powers of other regulators, such as the GMC or the General Optical Council. The advantage of Privy Council approval is that it can then lay Orders in Council before Parliament, thus ensuring parliamentary scrutiny. It can also vary the rules and draft to ensure that they are legally correct.

Stephen O'Brien (Conservative, Eddisbury)

That is good enough for me, I beg to ask leave to withdraw the amendment.

Schedule 8

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 89, in schedule 8, page 152, line 6, after ‘functions’, insert ‘pertaining to regulation’.

We reach another important issue. The Bill allows an Order in Council to transfer any of the functions of the Royal Pharmaceutical Society of Great Britain or the Pharmaceutical Society of Northern Ireland. The amendment would limit that power to transferring functions pertaining to regulation. Currently, the regulation of pharmacy is shared by two bodies—the RPSGB and the PSNI. The Government have decided to split the functions of the RPSGB, leaving it with responsibilities for leadership within the profession and representation of the profession, as with the Royal Colleges, and transferring its role in regulating and inspecting pharmacy premises, pharmacists and pharmacy technicians to a new body, the general pharmaceutical council, as set out in paragraphs 1.29 to 1.36 of the White Paper, “Trust, Assurance and Safety”. As the explanatory notes put it:

“The RPSGB’s responsibilities towards pharmacists for professional leadership are potentially in conflict with its role as an independent regulator for the profession itself. The professions are taking on an increased clinical role in the treatment of patients, whereby pharmacists have the autonomy to prescribe potent drugs. Therefore, this dual responsibility does not provide sufficient reassurance to the public that there is effective independent regulation of this role. Separation of the regulatory system from that of professional and clinical leadership will allow each distinct function to focus solely on its core role...Amendments are required to section 60 of the Health Act 1999 to allow an Order made under that section to remove the statutory function of pharmacy regulation from the RPSGB and the PSNI and transfer these functions to the proposed General Pharmaceutical Council.”

That is the essence of what we are discussing here. My understanding is that the RPSGB is happy with the separation of functions, so we will not quibble with that. In its briefing, it notes that schedule 8 allows the transfer of

“all of the RPSGB’s functions”

to the General Pharmaceutical Council. Throughout the discussions between the RPSGB and the Department of Health, it was understood by both parties that only the regulatory and directly associated functions would be transferred. The current wording would allow current or future Governments to strip all functions of a membership organisation and place them with an independent body that reports to Parliament. That would place the profession’s ability to form a professional body in the hands of a Government who could remove several functions from the new body and place them within the public sector. The RPSGB understands that the Government intend to set out in secondary legislation the functions that are to be removed. The Government have expressed the aim of extending the remit of that secondary legislation to include more than regulation. Therefore, we need to be clear whether they are trying to have it both ways, or whether there is some covert agenda that has not been fully exposed.

The RPSGB maintains that, as the Bill stands, subsequent secondary legislation could extend the remit further to include most of the activities undertaken by the RPSGB. Its concerns are supported by paragraph 329 of the explanatory notes, which states:

“The primary purpose of the inclusion of subsection (2A) is to ensure that these statutory functions, which are separate but connected to the regulation of individual practitioners, are brought within the scope of section 60, so that changes can be made across all of the RPSGB’s and the PSNI’s functions where necessary.”

That is the vital phraseology.

“For example, this will facilitate the transfer of all of the RPSGB’s and the PSNI’s (subject to a decision by Northern Ireland Ministers to proceed in this way) functions under these Acts to the proposed General Pharmaceutical Council which the Government intends to create in the future by a section 60 order.”

I want to emphasis this next point:

“However, it is also envisaged that these powers will be used to modernise the requirements in relation to pharmacy premises in particular.”

While the explanatory notes and the memorandum on delegated legislation suggest that the power will be used on regulatory functions only, there is no reflection of that and hence no limit to the Secretary of State’s power in the Bill. That seems particularly obtuse when our amendment would put it simply and succinctly. Settling that issue is important not only for clarity of legislation, but because there is real concern that if the Government wield that amount of power over the RPSGB, they will severely hamper the body’s ability to criticise the Government and represent its profession when the time comes.

The Government have given no reasons to the RPSGB as to why they want to create powers beyond the scope of transferring regulatory functions. While I should note that powers under section 60 are governed by the affirmative resolution, it is important that the legislation should be as tightly formed as possible. There is no reason for the open-endedness of the drafting here. I hope that the Minister will agree and accept that the amendment has been tabled both to clarify and to assist him and his Government to be consistent with their declared approach, which is not reflected in the drafting of the Bill.

Sandra Gidley (Liberal Democrat, Romsey)

I hope that my voice survives this debate. I should declare an interest here as a fellow of the Royal Pharmaceutical Society of Great Britain. It is a body to which I pay considerable sums each year. This measure has caused great concern. It is worth the Committee noting a little background. The Royal Pharmaceutical Society of Great Britain is unique among professional bodies, as it represents the profession and also regulates it. Sometimes those two functions have not sat easily side by side. Until fairly recently there was great resistance to changing, but it is clear from the way that modern regulation is going that a body with a high proportion of lay membership struggles to become an effective representative body. I stress that now, except in Luddite quarters, there is little or no opposition to the splitting of the functions.

There is concern, however, about which body is going to do what. Although the Bill deals only with the setting up of the General Pharmaceutical Council, the profession has also been vaguely promised that it can set up a body akin to a royal college, the shape of which is currently being consulted on in various ways. However, there have been few promises of any funding, and the Government have, in some ways rightly, taken a step back and said, “This is for the profession to decide.” Nevertheless, the joint working in past years means that some of the society’s functions have become intertwined. For example, the education department deals with the setting of standards, which falls neatly into the new GPhC’s remit, but also deals with other educational matters that are perhaps more relevant to a body akin to a royal college.

I shall not pretend that separating the functions of the two bodies will be easy, but it is not beyond the wit of man. It is only fair to the society and its members, at a time when the profession is faced with a White Paper, community pharmacists have just struggled with a large reclamation of money for category M products and people are not sure what plans the Government have for pharmacy, that there be far greater clarity about which roles are to be transferred to the GPhC and which are not. I support the amendment fully, because it would force the Government to come up with some device by which that process can be undertaken.

I am not always a fan of secondary powers, but a clear commitment to regulation or to putting a list of functions in the Bill on Report would be helpful. It would give the organisation the necessary clarity in transferring its regulatory powers to the GPhC by the allotted time. The process is complex; it is not as straightforward as just saying “These two departments will transfer to the GPhC and the others won’t.” I cannot see any reason why the Government would want to resist a change that would make the process more transparent at this early stage.

Ben Bradshaw (Labour, Exeter)

I have sympathy with the spirit behind the amendment, but our view is that it is based on a fundamental misunderstanding of the schedule. There is no possibility of any functions other than regulatory functions being transferred under the Bill. The scope of section 60 of the Health Act 1999, which the schedule is amending, is confined to regulation. It will therefore enable only functions relating to regulation to be transferred to the proposed new General Pharmaceutical Council. The schedule also confirms that an order under section 60 of the 1999 Act cannot be used to abolish either the RPSGB or the PSNI, as both have functions relating to matters other than professional regulation. I therefore urge the hon. Gentleman to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

No. We have made our case and we will press it to a vote.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 272, in schedule 8 , page 152, line 8, at end insert—

‘(1B) An Order in Council may not provide for any function conferred on the Privy Council, in relation to any profession to which section 60(2)(a) applies, to be exercised by a body other than the regulator of that profession.’.

I could not help noticing when you lifted your clipboard, Mr. Hood, that it says “shatterproof clipboard” at the bottom. The day that we get a Government acceptance on one of our amendments, it will shatter.

The provision clarifies how the Health Act 1999 can be amended using a section 60 order. Paragraph 4(4) of schedule 8 removes the restriction in the 1999 Act that prevents a section 60 order from being used to transfer functions exercised by the Privy Council to another person. The explanatory notes say that it is anticipated the powers under paragraph 4(4) will be used

“to transfer functions from the Privy Council to the regulatory bodies for the affected professions rather than to third parties”.

The amendment would allow such transfers to be made only to the regulator of the affected profession, and not to some other party. It would be helpful for the Minister to clarify to which other bodies he might anticipate transferring those functions or for what other reason the proposal should not be adopted. I had to double check earlier, because the hon. Lady said that she was going to press the amendment and I was baffled by that, although it was very nice to have her support.

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman made a slightly barbed remark at the outset about our reluctance to accept amendments. With regard to one of the earlier discussions about the requirement for a legally qualified chair, although I clearly indicated that we were going to address the matter, it was still pushed to a vote. I shall leave it there.

I imagine that the concerns behind the amendment are that the appointments functions of the Privy Council could at some point be transferred to individuals such as the Secretary of State. That would be an understandable concern, and I want to assure the Committee that there is no intention to undertake such a transfer. However, there are circumstances in which the appointments functions carried out by the Privy Council might be better carried out by a body other than itself or the regulator of the profession—the Appointments Commission, for example, which we have already discussed with regard to the appointment of members and chairs to those bodies.

Another example of the sort of flexibility that might be needed is with regard to the appointments of members of councils themselves. As I have said, at the moment, the Appointments Commission makes the Privy Council appointments under delegated powers, but in the future we might want to look at where the bodies in Scotland, Wales and Northern Ireland could have a role in relation to some of those appointments. Those are the reasons for the flexibility, and I hope that in the light of that, the hon. Gentleman will withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 209, in schedule 8, page 152, line 9, leave out subparagraph (3) and insert—

‘( ) In sub-paragraph (2) after “practice”, insert “or be persons included in the register of members admitted to practice”.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 161, in schedule 8, page 152, leave out lines 9 to 12.

Stephen O'Brien (Conservative, Eddisbury)

Amendment No. 209 is a probing amendment to clarify the Government’s intentions on the lay-professional balance on the councils. The Committee will recall that I made a similar distinction on the fitness to practise panels. Amendment No. 161 has the same probing purpose.

Amendment No. 209 would amend schedule 3 of the Health Act 1999. As it stands, the 1999 Act prevents the imposition of a lay majority on the regulatory bodies by secondary legislation. The amendment would ensure clarity of lay and professional members of the councils of regulatory bodies. The Bill will allow a lay majority to be imposed through secondary legislation, through a section 60 order, which is made by Her Majesty by Order in Council subject to the affirmative resolution. Under schedule 8, lay majorities could be imposed by secondary rather than primary legislation, as the current legislative framework requires. The GMC in particular argued for clarity in the evidence sessions as a way of strengthening independence from the Government, which is the dominant provider of health care in the UK, and from any single group. That independence is critical to ensure continuing confidence in the regulatory system, as we have discussed many times.

In the memorandum on delegated legislation, the Government note that the provision

“will allow councils of health professions bodies to have a lay majority, should they wish. It will be used as and when such councils request such a change”.

Will the Minister confirm whether the Government have taken a position on lay parity or majority? Will the councils truly be free to make such decisions themselves, or will the Government urge or coerce them? There is a valid concern that the Government are giving themselves the power in order to have something to do if and when there is another professional scandal—there may well be such a scandal. It is not our job to provide hooks by which the Government can say that they have done something when, in fact, the authority must rest with the panel that we are considering.

Sandra Gidley (Liberal Democrat, Romsey)

I tabled amendment No. 161 to tease out some of the Government’s thinking on lay members. I fully understand the public confidence arguments. The old regulatory bodies had very low lay representation—a token handful of members—which did not engender any sort of public confidence. The numbers of lay members on all regulatory bodies has increased significantly, and there is a lay voice, as it were.

However, to some extent, this is smokescreen approach. No attempt appears to have been made by anyone to assess the impact of lay members. Has decision making improved as a result of the greater proportion of lay members? Do the public have greater confidence in the system? Have they even noticed what is happening in professional regulation? Alternatively, is the measure simply a sop to the chattering classes who like to talk about public representation on every board? I do not mean that pejoratively—I think there are many situations in which we would benefit from increased public involvement.

I was fully behind the concept of increased lay representation—I frequently challenged some in my own profession for being stuck in the mud on the issue. I thought that the patient voice would be more central, but, because of the nature of the people who are selected for such positions, I do not think that that aim has been achieved in the slightest, if it was ever an aim. Some lay members are extremely good; others come across as little more than professional committee sitters.

The selection of lay members and what they can bring to the process is an issue. For example, from talking to health professionals on various bodies about fitness to practise, I learned that some of them are yet to be convinced that lay members are necessarily a good thing. That is not, as I cynically thought, because lay members are harder on the health professionals. Often the reverse happens. The attitude that doctors, or whoever it might be, cover up for their colleagues is in the dark ages. The overriding aim of most health professionals who sit on a professional regulatory body is that the profession is seen in a good light. They do not want rotten apples in the barrel and to some extent they are harder on their colleagues than other people. That is why I ask whether there has been any change in decision making as a result of having lay members, and what assessment is being made of the effect they have had.

Lady Justice Smith said in her evidence that she wanted to enhance the lay voice. I think that that is absolutely right. We are required to produce an evidence base for many areas of policy these days, so I have three simple questions. What evidence is there that increased lay representation improves decision making? What assessment have the Government made of the impact of lay members and the potential impact of the lay majority? What attempt is made to balance the skills needed in an effective regulatory board?

Ben Bradshaw (Labour, Exeter)

We are trying to ensure that the councils of the health professional bodies can move to a lay majority should they wish to do so. Currently they cannot and to enable them to do so is a sensible freedom to give. The fact that osteopaths and opticians already do have or are moving towards lay majorities demonstrates that there is a desire among some people to do so.

In response to the hon. Lady’s question, experience of the involvement of lay members is positive. It is important to remind ourselves that the genesis of the legislation—the hon. Lady referred to Dame Janet Smith’s inquiries—is that public and patients need to be reassured that the professional regulatory bodies are not dominated by an in-built majority of professionals. That is a fundamental part of the Bill. All we are seeking to do is to ensure that there is parity on the professional bodies, which is I think supported by everybody except the British Medical Association, and that if some regulatory bodies wish to move to a majority, they can do so—at the moment they cannot. No one will force them to do it, but if that is what they want, they should have the freedom to do so. The impact of the amendments would be to take that away.

Stephen O'Brien (Conservative, Eddisbury)

I have listened carefully to the Minister. As I said, it was a probing amendment and just to make sure the record is correct, I wish to state that I am grateful to the hon. Lady and her colleague, the hon. Member for Leeds, North-West, for adding their names to our amendment—No. 161. I mistakenly suggested that they should lay claim to that amendment. Considering what the Minister has said, if further issues need to be pursued, there will be more appropriate moments later.

Sandra Gidley (Liberal Democrat, Romsey)

I noted that the Minister did not respond to what the Government’s thinking was on the future of the balance. I think it was the Foster report that said that if the bodies moved to parity they would be reviewed in a few years, whereas if they decided on a lay majority they would be left alone for a while. That signals that the Government’s thinking was to try to move to lay majorities in all cases. Did the hon. Gentleman get that impression too?

Stephen O'Brien (Conservative, Eddisbury)

Perhaps not with the same distinct clarity that the hon. Lady seems to imply. It is always open to the Minister to jump up and interject at any point if he wishes to clarify something. I dare say that we will return to the matter so, on that basis, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 210, in schedule 8, page 152, line 19, leave out subparagraph (2) and insert—

‘( ) In sub-paragraph (2)(d) after first “to”, insert “the investigation of”.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 211, in schedule 8, page 152, line 23, after first ‘to’, insert ‘adjudication on’.

Stephen O'Brien (Conservative, Eddisbury)

We romp on. The Health Act 1999 specifies secondary legislation cannot be used to transfer core functions of the regulatory bodies to any other organisation, so the amendments seek to enshrine in legislation the investigation of the fitness to practise of their registrants as a core function of the GMC and GOC, and that the investigation function can be transferred to the OHPA or another body by recourse to primary legislation only.

Paragraph 8(2) of schedule 3 to the 1999 Act enshrines the four functions of the regulatory bodies as

“keeping the register of members admitted to practice, determining standards of education and training for admission to practice, giving advice about standards of conduct and performance, administering procedures (including making rules) relating to misconduct, unfitness to practise and similar matters.”

The fourth function, set out in paragraph 8(2)(d), relating to issues of unfitness to practise, consists of two separate but key activities: investigation of a doctor’s fitness to practise, and the adjudication by panels of individual cases. The argument for separating the two activities was set out in the fifth Shipman report and supported by the Government. However, to ensure that the separation does not lead to the wholesale transfer of investigation as well as adjudication, the primary legislation should be explicit that one of the regulatory bodies’ core functions will remain the investigation of a registrant’s fitness to practise. That would also ensure the integrity of the four functions of the regulatory bodies.

Ben Bradshaw (Labour, Exeter)

It is clear from the hon. Gentleman’s words that his concern is what I thought it probably would be: to prevent the order-making power being used to transfer the role of investigations to the OHPA. I entirely agree with that point. The transfer of investigatory powers would be utterly contrary to our reason for creating the body in the first place, and I can assure the Committee that we have no intention of doing so. However, it is important that we ensure to take the right powers now, so that we are able to make the transfers that the OHPA will need. The role of the GMC and the GOC, for example, is more than just the investigation of complaints. They must consider whether the allegations are

“an impairment of fitness to practise”

against the standards that they have set; whether sufficient evidence can be obtained; whether a case needs to be referred to the OHPA for adjudication, or whether other action would sufficiently protect the public.

“Investigation” hardly covers the presentation of cases to the hearing panel. I think that Members will agree that that stretches “investigation” beyond its dictionary limits. Equally, although the OHPA has no role in carrying out investigations, its panels may, during the hearing, request the regulatory body to provide further information that might require additional investigation. One could argue that that could be defined as an investigatory function, although it is clearly part of OHPA’s role as an adjudicator.

Orders under section 60 have proved an effective means of keeping professional regulation up to date, and of responding both to changes and to public expectation of regulators. The process for section 60 orders requires public consultation on a draft of the proposed legislative changes, and the order is subject to the affirmative procedure. It seems highly unlikely that any attempt to transfer non-adjudication functions would survive such scrutiny, nor would we ever wish to attempt it. I hope that on the basis of those reassurances, the hon. Gentleman will feel free to withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister, particularly for the assurances that he has placed on the record. Of course, we would always be more comfortable if they were in the Bill, but they are clear from what he has said. He also prayed in aid the limits of dictionary definitions. As someone who is reluctantly addicted to The Daily Telegraph Saturday crossword, I can assure him that many dictionaries have very different limits on true meanings. On the basis of what he has put on the record, I beg to ask leave to withdraw the amendment.

Clause 104

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 50, in clause 104, page 51, line 11, after first ‘to’, insert ‘the finding of facts in’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 51, in clause 104, page 51, line 12, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

No. 57, in clause 115, page 62, line 30, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

Stephen O'Brien (Conservative, Eddisbury)

We arrive at the proposed high-profile and significant change to the standard of proof. Amendments Nos. 50 and 51 are probing amendments to seek clarification on the role and nature of the civil standard of proof. They are, in part, an attempt to reflect on the face of the Bill the sliding scale with which the civil standard of proof is ostensibly applied within common law. Amendment No. 57 seeks a similar change to clause 115, which deals with the standard of proof in proceedings related to the registration of social workers.

Lady Justice Smith made three recommendations relevant to this discussion in her fifth report of the Shipman inquiry. As regards evidence, she said in recommendation 80:

“As part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene during FTP panel hearings and to ask questions if they feel that any issue is not being adequately explored.”

As regards standard of proof, she said in recommendation 81:

“The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction. It is arguable that the criminal standard of proof is appropriate in a case where the allegations of misconduct amount to a serious criminal offence.”

As regards reasons for findings of fact, she said in recommendation 83:

“FTP panels should be required to give brief reasons for their main findings of fact.”

The civil standard was taken up by the chief medical officer in “Good Doctors, Safer Patients”, as his first recommendation:

“In adjudicating upon concerns about a doctor’s performance, health or conduct, the standard of proof should be the civil standard rather than the criminal standard... This will reduce the number of cases where a doctor is not judged ‘bad enough’ to enter formal General Medical Council procedures but is still a cause of serious concern to professional colleagues, management or patients in a local service.”

Angela Browning (Conservative, Tiverton and Honiton)

Does my hon. Friend think that it would be helpful if the Minister were to give us some guidance on how that change will be implemented, so that doctors understand that although it is a change from the criminal standard to the civil standard, the longer-term consequence could still be that a doctor is found unfit to practise? Has he had discussions with the GMC and the BMC about how doctors will prepare for such cases? Although a lot of the drivers in this part of the Bill have come from some high profile and tragic cases, in the interests of natural justice, what guidance will be given to doctors to ensure that they have the right preparation and support to ensure that they put the evidence in a timely way, given the potential long-term consequences?

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to my hon. Friend for that intervention. If the Minister feels it would be helpful to intervene, I am happy to give way; otherwise, I am sure that he will address the matter when he responds to the amendments. That is the test that we should apply with patients’ safety and welfare uppermost in our minds, while recognising that we are so dependent on the medical profession that we must ensure that it believes that there is trust and natural justice in this process.

As I said earlier, the civil standard was taken up by the chief medical officer in his report. That report also noted the example of New Zealand’s adjudication body, the Health Practitioners Disciplinary Tribunal, which uses the civil standard of proof. The chief medical officer noted what he saw as

“long-standing discordance in the threshold for determining an unacceptable standard of practice between the General Medical Council and the NHS employer...[which] can lead to a situation where a doctor survives a challenge to continued registration, but is not regarded as someone whom an NHS employer would trust to look after patients safely”.

He also noted that

“it is argued by some that the sanctions imposed by the General Medical Council are so devastating to an individual doctor’s livelihood and reputation that the criminal standard of proof must apply (those who advocate this cite human rights legislation when it is suggested otherwise)”.

Having said that, the chief medical officer does not make much of an argument for the civil standard beyond accepting Lady Justice Smith’s recommendation.

The Government White Paper, “Trust, Assurance and Safety”, noted the Government’s agreements with both Lady Justice Smith and the chief medical officer. Chapter 4 stated:

“The standard of proof itself refers to the level of certainty that must be achieved in order to prove disputed facts and is applied only in determining whether or not alleged facts are found proven...The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt, or they must find in favour of the health professional...Generally, the civil standard requires that the facts are judged more likely than not to be true (known as ‘the balance of probabilities’). However, the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true...The sliding civil scale is already used by the substantial majority of health regulators”

in child protection cases and employment tribunals.

Most importantly, the White Paper stated:

“There is clear legal authority that, in cases of sufficient gravity, the flexibly applied civil standard, sometimes referred to as the sliding civil standard, is virtually indistinguishable from the criminal standard. This is most likely to be applied to cases that are of sufficient gravity that a health professional might lose his or her livelihood.”

“Trust, Assurance and Safety” picked up on the theme established by Lady Justice Smith and the chief medical officer that professional regulation is a protective jurisdiction.

The White Paper also argued:

“There is currently a perception...that the criminal standard of proof...acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this results in a culture of hesitancy and reluctance to refer cases to the GMC...The perception that it is not worth taking action due to the perceived difficulties in proving allegations to the required standard of proof potentially weakens public confidence in the health regulators and threatens public health safety. It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment”.

I note with concern that, as with the creation of OHPA, the legislative move seems to be as much in response to perception as to actual fact. In an answer to a question put by me in the oral evidence session, Lady Justice Smith restated her commitment to the civil standard of proof and its location in the common law of England.

Having set out the political trajectory of the clause, it would be helpful for the Committee if the Minister were to outline the impact of the move to the civil standard, which is a point picked up by my hon. Friend the Member for Tiverton and Honiton. I want briefly to consider the standard of proof itself, in which case we can judge more carefully how long it will take to conduct FTP panels, fairness—both within and between adjudication—changes in the quality of issues referred to FTP panels and the question of defensive medicine.

On the standard of proof, it is right to draw the Committee’s attention to the written submission by the Medical Defence Union, which argues that

“the criminal standard of proof of ‘beyond reasonable doubt’ or of ‘being sure’ does not create an artificially high standard of proof as it does not equate with certainty. A reasonable doubt is the sort of doubt that might affect the mind of the person dealing with matters of importance in his own affairs”.

I believe that the relevant ruling is Walters v.the Crown 1969. There is also an interesting legal argument, which may be better pursued in another place, that the civil standard does not offer a balance of probabilities as precise as 49 to 51 per cent., as Lady Justice Smith contends. I think that that arises from rulings such as Lord Bingham in B v.Chief Constable of Avon and Somerset Constabulary 2001 and Lord Phillips in Gough v.Chief Constable of the Derbyshire Constabulary 2002.

It would be helpful if the Minister were to outline both the evidence for the move to the civil standard beyond Lady Justice Smith’s recommendation and examples where the criminal standard has led to dangerous or incompetent doctors being allowed to continue to practise. Linked to that is the question of the fair application of a sliding scale, rather than a more definite measure. Lady Justice Smith, while making it clear that she supported the move to the civil standard whether or not fitness to practise panels have legally qualified chairmen, asserted that

“a legally qualified chairman...will understand how it works.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 38.]

That poses an obvious issue of fairness between hearings, as, if the different chairs are applying the civil standard to different levels, a doctor who would be found liable under one chairman might be found not liable under another. It would be helpful if the Minister were to advise the Committee on the checks within the system, as nobody wants an increase in costly, time-consuming and psychologically wearing appeals. That is one of the key points that has arisen as result of this move.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does my hon. Friend agree that there may be an additional layer of complexity? We need to understand whether the sliding scale in relation to the seriousness of each case relates to the degree of professional failure or to the consequences of that professional failure, which are two separate matters and may be applied differently in different cases.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to my hon. Friend, who is precisely right. The question is whether the sliding scale is geared to perception or reality—until the hearing has happened, one cannot be sure—of professional failings or the consequence of those failings. I would add a third aspect, which is the potential sanction or remedy that is within contemplation. The big question, which I put directly to Lady Justice Smith in the evidence-taking session, is how can one know what evidence will be required to prove matters of fact until and unless one knows the gravity of the matter and the range and gravity of the potential sanctions, penalties or removal of livelihood that might be at the end of the process. That is what is so difficult.

In fairness, Lady Justice Smith said in her oral evidence—one of the great benefits that we have had from that process—that she did not feel that that was something that I should be over-concerned about. She said that there has been some experience, which is part of the body of our common law, and that there is sufficient expertise. However, she linked that to having a legally qualified chair of the panel. That is why it was difficult to argue for the amendments in the order that we have discussed them today, although I understand the procedural reasons for that. In many ways, it will be helpful to go through the discussion on Report, because, as the Minister has quite fairly and properly pointed out, he has it in mind to introduce a measure on a legally qualified chair position.

I am conscious that we may be interrupted, but the issue is sufficiently important that we must ensure that we do not rush it unduly. I have made the point about fairness between hearings and between two different sets of circumstances and individuals. There has also been some question over the fairness within a hearing, particularly in relation to a standard of proof where the bar is raised ever higher as the hearing proceeds. Neither the Government briefing nor our witnesses have clarified that for us, other than the somewhat compelling assurance that Lady Justice Smith was able to command. I would be grateful, therefore, if the Minister were to touch on that specific matter in his response.

Delay is also something with which we must be concerned. It is plausible that hearings will take longer under the civil standard of proof, particularly at the beginning. Has the Minister looked at the pace at which hearings under the civil standard take place, both in our regulators and other countries, and does he expect either a temporary or permanent increase in the length of time taken? In light of that, what training will be in place for those who sit on fitness to practise panels?

There are a couple of other areas that I want to cover, and I am happy to proceed until I am drawn up short. On quantity, Sir Graeme Catto noted during the GMC’s oral evidence that while he did not think that the move to the civil standard of proof would have “any significant effect” in terms of numbers at the serious end of the spectrum,

“there may be an impact on doctors whose practice has failed to a lesser extent”.

However, he said

“any impact is likely to be small”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 51, Q103.]

What increase in the number of fitness to practise hearings does the Minister expect to arise from the move to the civil standard? We have touched on that point before, and an answer would be welcome.

Finally, I would like to touch on defensive medicine. I do not want to be unnecessarily critical—far from it—but I thought that it was slightly unfortunate that Dr. Buckman and the BMA had not gauged more effectively whether it is an issue across the profession. While he did not make the case as effectively as he might have done, there is a justified concern.

Derek Conway (Conservative, Old Bexley and Sidcup)

I remind the Committee that with this we are taking the following amendments: No. 51, in clause 104, page 51, line 12, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

No. 57, in clause 115, page 62, line 30, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

Stephen O'Brien (Conservative, Eddisbury)

I am very flattered that what I was saying this morning was obviously of such intense interest and attraction that all the Labour members of the Committee have bothered to turn up again to hear what I say. I am most grateful to them for coming.

This morning we were going through our amendments to clause 104 on standards of proof, and I had just reached my final point, which dealt with some of the oral evidence from Dr. Laurence Buckman and the British Medical Association about defensive medicine. I explained that he had not made the case as effectively as some of us thought he might have done, given his justified concern that doctors would no longer be practising the best health care for their patients, but rather the best health care balanced with the best methods for avoiding any accusations that might end up in a fitness to practise hearing.

When I say “justified concern,” I mean a concern that we all have to take seriously, because anything said by the body representing doctors about the way they may practise is something we need to note with care. This is not a matter of contention in terms of the principle of moving the standard of proof; it has not turned into something on which the Committee is seeking to divide, but we owe it to the evidence we were presented with to look at it with some care.

Anne Milton (Conservative, Guildford)

Although I recognise that the BMA did not represent themselves terribly well during the evidence hearings, the point about defensive medicine is important and it is a concern. The Royal College of Obstetricians and Gynaecologists has said that the number of junior doctors wanting to go into obstetrics has dropped to an all-time low because of fears of litigation; in fact, one of the reasons cited for the increase in Caesarean sections is that doctors are very nervous about litigation.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to my hon. Friend, who is right to raise that point. It highlights the difficulty for all of us—particularly when dealing with new legislation—in understanding how much it arises because of specific items such as the one we are considering and how much because there has been a general move toward what is most easily defined as a compensation culture, where some may be driven by contingency legal fees or the purposes of the settlement value or whatever it may be. I have some grave difficulties with that and regret that we have moved to such a state of affairs, but there we are: the general and the specific are often very difficult to disaggregate. We all need to be concerned if there is a trend towards more litigation and it is having an effect on professional practice.

The concern can range from lowering the level of risk when clinical decisions are made to doctors prescribing otiose procedures to hedge themselves effectively, with the NHS footing the bill all the while. Chapter 4 of the “Trust, Assurance and Safety” White Paper touched on the issue, stating:

“This argument rests on the misapprehension that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions.”

The counter-argument is that health professionals, with high professional standards of commitment to their patients, would guard against that risk. Where there is doubt,

“health professionals, usually working within a team of other professionals, would generally make such decisions in consultation with their colleagues to ensure a consensus of expert opinion and agreement. In addition, where significant doubt or concerns remain about a procedure, intervention or prescription, clinicians are professionally obliged to obtain informed consent from their patients...In emergencies, such an approach may not be possible and the judgement of the individual clinician in such a situation will be paramount.”

Regulators and panels would take that into account. It would be very helpful if the Minister could give the Committee any further insight on the issue. I recall the intervention of my hon. Friend the Member for Tiverton and Honiton this morning, so the Minister’s comments may be helpful to ensure that we do not regard the issue merely as an irritant in our considerations, but to try and bring things to the level of reality. I do not want to disclose the name of the doctor who wrote to me about the defensive medicine issue, but he said:

“To illustrate this, today I saw 30 patients in surgeries and I have made 3 referrals from this day's work (which is about average for me). That is a referral rate of 10%. Let's say I get nervous (which I will) and, as a conservative estimate, I start on a day like this to refer 4 patients. That is an increase to a referral rate of roughly 13%. As an increase in my workload it is negligible. However, the hospital sector now has 4 instead of 3 referrals, an increase of 30%. Imagine a 30% rise in outpatient work, X-rays, scans, and blood tests across the board, because GPs need to manage the risk that a political appointee will find them ‘probably’ incompetent.

There may be other hidden costs. We may prescribe more. Many GPs nearing retirement age will bail out now, rather than face such a hostile future.”

That may be the type of sentiment that the BMA was trying to reflect in evidence to us. To be honest, I am not persuaded that view will drive the way the system will work, but as legislators we have to take what the BMA has presented to us seriously. We need to hear from the Minister that he and the Government have carefully thought the matter through and how they will make sure that moving the standard of proof does not lead to unintended consequences—although, because we are debating them, the consequences could not possibly be said to be unintended. The consequences would be intended because, having considered the clause, we shall definitely want to pass it—so we want to make sure that no intended consequences lead to unfortunate outcomes.

With that series of arguments, I propose the amendments in the group. I look forward to what the Minister has to say, in what is after all a broadly consensual area. However, the Committee needs to have on record a lot more detail of what lies behind the proposals.

Sandra Gidley (Liberal Democrat, Romsey)

Most of the debate is a stand part debate as well, so my comments are generally on the whole principle of the change to the standard of proof from criminal to civil, rather than specifically on the detail of the amendment. I fully understand the concern of the doctors. However, many professional regulators already operate to a civil standard—my own profession, for example, but many others as well.

I am not particularly aware of cries of injustice over the outcomes of determinations of fitness to practise. That is only my understanding, but I have been told that the panels need a great degree of certainty before coming to the decision to apply the ultimate sanction. However, there are slight problems with some of the associated changes in the Bill, which removed the finding of facts, separating them from the decision as to which sanction should be applied. I want to talk about that a little more later on.

There appears to be lack of certainty about whether some sliding scale of proof applies. Assurances from the Minister before the Bill were that the rules would be applied flexibly, but that does not, sadly, inspire confidence—it is not lack of confidence in the Minister, but in the consistency of the whole process. In addition, it has to be noted that the profession appears to be divided. The General Medical Council will be introducing the changes anyway, whatever we decide in the Bill, but the BMA is opposed to them. I suspect that I am not alone among members of the Committee in receiving numerous individual representations from doctors who feel aggrieved. To say that they feel “got at” is a bit dramatic, but they think that they do a good job and that somehow there is a small risk that, just by doing their job, they may get something wrong one day and lose their livelihood. I am not sure that will happen in practice but I can understand the concern.

In oral evidence the BMA said that it was up to the Government to provide an evidence base as to why the changes should be made. I asked the BMA for evidence to support its claim that various things would go wrong and that there would be all sorts of consequences. I have yet to receive any evidence that is concrete proof that the change will lead to the fears expressed by the BMA becoming a reality.

What causes me slight concern is that clause 104 (4) says that the decision—if the clause is voted on and goes ahead—can be amended only by primary legislation. If it was fairly obvious that we had got it wrong, although I do not think that will be the case, it would be helpful if there were powers to enable us to make a quicker reversal by use of secondary legislation.

There are also concerns that, because of the lack of transparency over consistency, decisions could be made that would not inspire confidence in the procedure. The proposal for a legally qualified chair in some of the more difficult cases will probably help to supply some of that consistency. In the light of our debate this morning it would be helpful if the Minister could reflect on that point.

Concerns have been raised that there is likely to be considerable additional delay and expense. There are also concerns that there may be more legal challenges to protect doctors’ interests. If that were a fair assessment of the situation I do not think it is something to which we would happily say yes.

The Medical Defence Union provided some interesting food for thought. It claims:

“The argument that the public interest justifies a switch to a lower standard of proof because public safety would be better safeguarded is flawed...It cannot be in the public’s, patients’ or profession’s interest for good doctors to be found impaired when they are not. A lowering of the threshold of proof risks such unfairness and will undermine confidence in the regulatory process.”

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does the hon. Lady agree that the other reason why the point she is making is valid is that in essence the system will mean that the more serious the breach by the doctor the higher the standard of proof will be? When the patient is most at risk, the standard of proof is likely to be closest to “beyond reasonable doubt”.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman makes an interesting point but I will not be sidetracked by it at the moment. One of the points raised by the MDU is that the standard to be applied needs to be clear at the outset of the case. We heard some oral evidence to that effect. At the time I was not sure if I agreed. The MDU says:

“The prosecution, defence and the FTP panel need to know the standard to be applied at the start of the case. It is against this standard that the evidence to be called will be assessed. However, in FTP hearings the fact-finding stage precedes the sanction stage. In many cases the FTP panels will not know at the outset whether the allegations, if proven, are likely to result in suspension or erasure. How then will they know whether they should be applying the highest civil standard?”

Stephen O'Brien (Conservative, Eddisbury)

The hon. Lady is wrestling with some of the issues with which we have had to contend. It is important to get things right because many people will study this. It is clear that we agree in principle that the standard of proof should change from criminal to civil, and that there will be a differential standard within civil proceedings—we had some testimony on that matter. However, amendment No. 51 was deliberately designed to address some of her points. It suggests that there should effectively be a criminal procedure coupled with a civil standard of proof. That would mean that if, at the outset or during the course of a hearing, it were to become clear that the consequences were much worse than people originally feared or thought possible, the outcome could be more draconian.

A criminal procedure would mean that the prosecution, for want of a better word, would have to lay out its case in order, as a matter of justice, so that the defence would have sight of the case against it and time to prepare before answering it, whether or not the defendant were put in the witness box, which is quite a big issue. That is why we would recommend amendment No. 51, which would overcome some of the hon. Lady’s concerns through procedure, rather than by affecting the standard of proof.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for clarifying the full implications of his amendment. I have no problem with the basic principle, but it is important to reassure the profession that people will be heard fairly.

Stephen O'Brien (Conservative, Eddisbury)

I am conscious that my interventions are long, but these are very detailed and complex legal issues. Amendment No. 51 was tabled because those who are accused of something are better protected by the criminal procedure. A prosecution then has to lay out its case, and it is up to the accused to decide whether they are guilty or not guilty and, if they are the latter, whether to put themselves under oath as part of their defence. That is different from criminal court proceedings, and some things would have to be amended, but that would give the professional in the dock a better ability to decide whether they had a proper defence against the charges, rather than being ambushed during the hearing, which would cause anxiety and also lead to the uncertainty of not knowing the standard of proof that was to be satisfied.

Sandra Gidley (Liberal Democrat, Romsey)

I was not disagreeing with the hon. Gentleman, but merely reiterating that the confidence of the profession is very important. It is one thing to have the confidence of the regulator, but regulators are not always best loved by their professions because they are sometimes regarded as policemen.

What would the change to the civil standard achieve? Its purpose might be to lower the threshold for findings of impairment of fitness to practice, thus bringing more doctors under the FTP panels, yet the GMC itself does not believe the change would achieve that result. A change to the civil standard would import some disadvantages without meaningful benefit. Will the Minister reassure us that this is not just a box that can be ticked as a result of the Shipman inquiry, and that it will improve matters for patients in the long run? Ultimately, that is what we ought to consider. While I do not have a huge problem with the proposed change, I still have to be convinced of the benefit to patients.

Kelvin Hopkins (Labour, Luton North)

I recently received a briefing note on behalf of representatives of health care workers below the level of doctor: nurses and other staff in the health sector. For the benefit of my hon. Friends, I think that it is important to put on record that they are concerned about the aspect of the Bill relating to fitness to practice proceedings. The Royal College of Nursing and Unison are concerned about retaining confidence in the system. On their behalf, may I ask the Minister to give us an assurance that a sliding standard will be applied to all fitness to practice proceedings that will be commensurate with the gravity of the allegation and the seriousness of the consequences? It might be that these organisations will be seeing the Minister privately. They might have already seen him privately—I do not know. However, I thought it was important to put this on record.

Stephen O'Brien (Conservative, Eddisbury)

The hon. Gentleman raises an important point of principle. We heard a significant assurance when the eminent lawyer, Lady Justice Smith, gave oral evidence. She said that that was integral to the current common law and, indeed, to the practice of various tribunals that are already in existence. What is not in the Bill, however, is any reference to the sliding scale. There is just a move from criminal to civil. The aim of these amendments is to reflect a gradation in the civil standard of proof that would meet the requirements of the constituency that he is seeking to represent. I hope that he will realise that the important point of principle is the need to get some sense of the sliding scale reflected in the Bill.

Kelvin Hopkins (Labour, Luton North)

I am grateful to the hon. Gentleman for his helpful intervention. I am not specifically seeking anything in the Bill, but I want an assurance about these matters from my hon. Friend the Minister. I hope that my hon. Friend will take note of representations made both in Committee and elsewhere before coming to a view on the final wording of the Bill before it becomes law.

Ben Bradshaw (Labour, Exeter)

I congratulate the hon. Members for Romsey and for Eddisbury on making a better job at putting forward the BMA’s case than it managed. I think that that would be the universal view of the Committee.

I was slightly confused by what the hon. Member for Romsey said. She started by saying that her own profession used the civil standard without any problems, and finished by asking why we were bothering to do this at all. This was one of the main recommendations of Lady Justice Smith that came out of the Shipman inquiry. The reason for it, however, is that which she and even the GMC and others gave in our evidence sessions. At the moment, because we have the extremes of either something drastic happening, or nothing happening at all, there is a reluctance to intervene early in a case. An example would be Shipman, or cases in which someone’s professional conduct might not be serious enough to warrant their striking off, but when another form of intervention and the flexibility to intervene in another way, helped by the civil standard of proof, might prevent something much more serious from happening. This relates to a question asked by the hon. Member for Eddisbury about the numbers of cases that we expect the independent adjudicator to see.

With this system and with the responsible officers in place locally, fewer cases should need to go to adjudication in the end because more of them will be nipped in the bud. As Sir Graeme Catto said in evidence, more cases will be dealt with locally and will not have to be escalated up. This is also about increasing public, patient and employer confidence in the regulator’s ability to tackle all types of cases, creating a system that is consistent across all health and social care, and setting up a framework that will encourage employers to act more proactively when previously a practitioner who might have needed help has evaded action by the national regulator. This was one of Dame Janet’s main recommendations. In our evidence session, she said that it was the right thing to do because

“we are talking about a protective rather than criminal jurisdiction”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 40, Q71.]

The GMC is already moving towards the civil standard of proof. Professor Sir Graeme Catto, in his evidence to the Committee, stated that six of the regulators had already moved to the civil standard, that it was working well for them, and that he did not see any reason why it should not work well for doctors. Although the BMA has managed to generate a few letters to members of the Committee and other Members of Parliament, Sir Graeme told me that the GMC itself had received only 50 letters from doctors protesting about a move to the civil standard of proof. The implication was that that was not very many.

It is right that there is no sliding scale in the Bill. That will be a judgment call for the panel, using the civil standard as described by Lady Justice Smith, which can be applied flexibly and can take account of the gravity of individual cases and how serious the outcome of proceedings might have been for the individual. More serious matters would require a heightened standard of proof, as is the case now. The courts recognise that the civil standard is a flexible standard that should be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving it.

Amendment No. 50 seems to be an attempt to clarify in the Bill that the civil standard of proof would be applied only to the finding of facts in FTP proceedings, not other parts of proceedings. However, we do not think that that is necessary because the clause can apply only to the finding of facts. The standard of proof is applied by the panel or committee when it is considering the evidence presented before it, and the evidence relates to whether the alleged events occurred.

The hon. Member for Tiverton and Honiton asked whether guidance would be issued to doctors to help them to get used to the new standard. We expect the GMC to issue guidance on this. The Office of the Health Professions Adjudicator will have a duty to make information on its functions public, and the Council for Healthcare Regulatory Excellence could have a role in making sure that there is clear guidance, and we have already asked it to look at doing so.

The hon. Member for Eddisbury raised the issue of consistency in applying the civil standard. We have also asked the CHRE to look at how it can ensure that there is consistency. Regarding appeals, individual practitioners will be able to appeal to the High Court if they feel that they have been unfairly treated.

Amendments Nos. 51 and 57 would place a new requirement on the regulators to ensure that their procedural rules are in keeping with those used for criminal court cases in certain circumstances. We have a problem with that because it would completely change the way in which regulators approach their hearings. In practice, that would mean that matters such as disclosure, jury trial, representations as to venue for hearing, rules relating to evidence of character and hearsay evidence would be subject to the types of provisions that apply to the criminal procedure.

If we accepted the amendments, regulatory bodies that have been successfully using much simpler approaches in their FTP hearings would find that they had to use more adversarial, time-consuming and costly approaches with no added benefit to the individual practitioner or the public. It is important that we emphasise that the hearing panel is undertaking a protective role. It is not acting as a criminal court or applying the criminal law. The purpose of the regulatory action is to protect the public, not to punish the practitioner, and that is almost exactly what Lady Justice Smith said in her evidence. It would therefore be wholly inappropriate to impose the rules of criminal proceedings on professional regulatory proceedings.

I congratulate the hon. Member for Eddisbury on doing a better job that the BMA of trying to make its point about defensive medicine. I found it very difficult to appreciate the exact point that the BMA was trying to make, but I think it was that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions. We do not believe that health professionals will behave in that manner as a result of the change. We are confident that their high professional standards and commitment to patients will guard against the risk. However, when there is doubt, uncertainty or significant risk in making such judgments, health professionals who usually work in a team of other professionals would generally make such decisions in consultation with their colleagues to ensure that there was a consensus of expert opinion. In addition, when such circumstances exist, clinicians are professionally obliged to ensure that they receive informed consent from their patients. I hope that my comments have reassured the hon. Members and that the hon. Member for Eddisbury will see fit to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I listened carefully to the Minister and I am grateful that he took us carefully through those items. I am glad to hear that the CHRE is looking at the potential worries about the question of fairness both between hearings and within hearings, where there might be different applications of different standards by different chairmen. The debate on clause 93 about the potential for a legally qualified chair of the panel could be important. The Minister has undertaken several times to go away and think that through, and we will possibly revisit it on Report. I would welcome that, and the need for it is reinforced by what we have just heard. There is an expectation that there will be fewer fitness to practise hearings, and if the chairs were legally qualified I suspect that the hearings would rattle on nicely and be unlikely to be lengthier.

I emphasise a point that the Minister did not touch on, as I think it is vital. It was also brought up Lady Justice Smith. For the chairmen—legally qualified or not—to work well, particularly given the approach that he is taking on procedure, training will be key. If training is seen as a priority, and that is vital, I will be happy.

Ben Bradshaw (Labour, Exeter)

I apologise for omitting to respond to that. I can reassure the hon. Gentleman that we have requested advice from the CHRE on how to make the transition to the civil standard as smooth as possible, including the need for training and any other needs of panel members. We have also asked for advice on changes in the procedural process and the administrative arrangements, and on how best, in the council’s opinion and that of individual regulatory bodies, any difficulties in the areas that he has mentioned can be overcome.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for that. It is helpful. I noted that the Minister was not keen to adopt the criminal style of procedure, notwithstanding application of the civil standard of proof, to give better potential protection to professionals who find themselves under scrutiny. However, I will not press that point.

I hope that as a result of the debate the Minister and his officials will reflect that it was not a question of tilting towards—although I fully understand the phrase—making sure that we are focused on protecting the public and therefore not seeking to punish the practitioner. I practised at civil courts and in arbitrations for some years. The point about the criminal process as opposed to the civil standard process is that there is always the hope that during cross-examination, despite the rules of discovery, one will end up with a wonderful nugget of a time bomb or an ambush in order to achieve success of the law. The whole point about the criminal procedure is that it is up to the prosecution to lay out its case so that the defendant can make sure that he is fully aware of what is against him and can prepare to make the best defence available.

The protection of the practitioner—in fact, the whole process that we are discussing—is secondary to protecting the public. That is consistent with what Lady Justice Smith was absolutely determined to do as a result of her reports on the Shipman inquiry. To make sure that we hold on to her priority, it is right that we enable a sense of fairness and justice in the process with the profession. That is the best answer to the BMA’s issues about defensive medicine. While I am grateful for the Minister’s flattery about making the case, I was as unpersuaded as he was about that particular risk. He also read out what I had cited as good reasons for not accepting that evidence. The BMA raising the issue on behalf of practitioners made it incumbent on us to look at the matter seriously, which we have done. On the basis of our discussion, it is wholly appropriate to beg to ask leave to withdraw the amendment.

Clause 105

Kelvin Hopkins (Labour, Luton North)

I beg to move amendment No. 249, in clause 105, page 51, line 32, leave out subsection (3) and insert—

‘(3) After subsection (2) of that section insert—

“(2A) The main objectives of the Council in exercising its functions under subsection (2)(b) to (d) are—

(a) to protect the public through encouraging consultation between the regulators and such other parties as the Secretary of State shall by regulation define about the functions of statutory professional regulation, and

(b) to protect the health, safety and well-being of patients and other members of the public in co-operation with such other regulatory agencies as the Secretary of State shall by regulation define.”’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 127, in clause 105, page 51, line 34, leave out ‘promote’ and insert ‘protect, promote and maintain.’.

No. 253, in clause 106, page 52, line 39, leave out ‘promoted’ and insert ‘protected’.

No. 254, in clause 106, page 52, line 43, leave out ‘promote’ and insert ‘protect’.

Kelvin Hopkins (Labour, Luton North)

I am pleased that my hon. Friend the Member for North-West Leicestershire (David Taylor) is present to hear our debate. I hope that I can do justice to his amendments, which I support.

The concern is to strengthen the role of the CHRE and to firm up the clause by substituting “protect” for “promote”. “Protect” is a stronger word and conveys what we want the CHRE to do. We also want to make more definite and specific the role of the CHRE in its operations. The proposed wording would be a significant improvement and I hope that it will be accepted. The word should clearly be “protect”, for the CHRE is the overarching body charged with being the

“authoritative independent voice for patients on the regulation of professionals”

in health care, to quote from the White Paper “Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century”.

Regulators, such as the GMC, have had public protection as part of their remit, and that should not be weakened in the CHRE by merely requiring it to promote the health, safety and well-being of the patients. We should be strengthening patient protection. I hope that my hon. Friend will look again at the wording of the clause.

More generally, the Minister will be aware that ever since the community health councils were abolished Labour Members have been concerned about the strength of protection for patients and of patient representation, and about the opportunities for patients to seek redress in their problems with the health care sector. I am still concerned that we do not have strong enough protection and representation for patients. I want the shop-front approach to patient representation that was provided in my community by the community health council. Ordinary people—not necessarily skilled or articulate—could go and talk to someone who was sympathetic about their problems. The patient advice and liaison service inside hospitals has to some extent compensated for that, but it is not the same as the community health councils. We need stronger representation.

Our wording would reassure me and others, such as my hon. Friend the Member for North-West Leicestershire, who are concerned. He spoke at length on Second Reading and made the points more effectively and strongly than I can. I agreed with his speech, which I have since read. I hope that my hon. Friend the Minister will think seriously about altering the wording.

Sandra Gidley (Liberal Democrat, Romsey)

The Liberal Democrats have tabled amendment No. 127, which has a broadly similar aim to amendment No. 249. The definition for the main objectives of the CHRE as it stands says that the council is

“to promote the health, safety and well-being of patients and other members of the public.”

Our amendment would change that to

“to protect the health, safety and well-being of patients and other members of the public.”

Health promotion is laudable, but it is not the same as protection. There is a need for consistency between the objectives of the CHRE and those of the regulators. The Bill as drafted does not replicate the precise wording of the objectives set for regulators, which recently amended legislation describes as to “protect, promote and maintain” the health, safety and well-being of members of the public and patients. Our fairly simple amendment would bring those strands of legislation into line with each other so that there are no conflicts and everybody is clear about what the duty is.

Public protection is what this Bill is all about and it is somewhat surprising that protection has been left out of the clause. I am hoping that we may strike lucky—[interrurption.] I see that the Minister is going to disappoint me. On that note, I shall sit down.

Stephen O'Brien (Conservative, Eddisbury)

On this occasion I also have to disappoint the hon. Lady. I have looked carefully at the amendments, and pay tribute to the hon. Members for Luton, North and for North-West Leicestershire for their wonderful support when we had the great campaign on community health councils, with which I was particularly involved.

I have difficulty with the amendment, but not because I do not agree with the sentiment or the ambition behind it. I note that the next group of amendments covers whether the CHRE should have more teeth in its investigative powers, but it strikes me that “promote” is more relevant to the purpose for which the CHRE is designed—in other words, advocacy rather than protection. The intention is not for it to be the ultimate regulator with teeth. While we have this current design of the CHRE, “promote” probably accords with the advocacy role more precisely.

It is a wholly appropriate and proper debate for hon. Members to advance, because we still have an outstanding issue about patient and public involvement and about having sufficient independence to move from pure advocacy to a hand-holding job, particularly for the vulnerable, that helps them to chart their way through a difficult NHS access or complaints procedure. Those vulnerable people often continue to have the greatest need of that. They are therefore reluctant to get offside of the very body about which they have concerns.

Perhaps there is another debate to be had about whether we should be looking to get something more independent—the CHCs—back in the frame. That is for another day and this is not the vehicle to take matters forward.

Ben Bradshaw (Labour, Exeter)

The Government agree that the council needs to be an authoritative, independent voice for patients and members of the public on the regulation of professionals. We made that clear in the White Paper “Trust, Assurance and Safety”. We believe this new objective achieves the intention set out in the White Paper. The Bill gives the CHRE a new main objective that underlines the exercise of its duties with the interests of both patients and the wider public in clauses 1 and 5. This will allow it to act as the independent voice for the patient and the public on health care professional regulatory issues. The CHRE’s new board structure will be mainly lay with no regulatory body representatives, as is the case currently, and the CHRE will have a new duty to inform and consult the public about the exercise of its functions

Clause 105 inserts the new main objective of the council in exercising its function into section 25 of the National Health Service Reform and Health Care Professions Act 2002. The current functions set out in that Act are to

“promote the interests of patients and ... public...best practice”—

in professional regulation—

“cooperation between regulatory bodies”—

and

“to formulate principles relating to good professional self-regulation”.

The council’s new objective requires it to consider, when carrying out its functions, how it will promote the health, safety and well-being of patients and other members of the public, which is a stronger objective and requirement.

The amendments tabled by my hon. Friend the Member for Luton, North would extend and change the council’s new main objective from promoting to protecting. Amendment No. 249 also specifies that the council’s function should be undertaken by encouraging consultation between the regulators and other regulatory agencies, and would confer a new power on the Secretary of State to define in regulations such bodies as the council should be required to consult and/or to cooperate with.

The amendments are not necessary. The council is already required to promote the health, safety and well-being of patients and other members of the public. That duty already encompasses protection of the public. I would emphasise that, in fact, the use of the term “promote” rather than “protect” confers a wider duty on the council. The term “protect” might also imply direct contact with patients and the public, which might misrepresent the function of the council, which, as the hon. Member for Eddisbury rightly said, is an advisory rather than regulatory body. We considered whether the term “protect” would be better, but were advised that, because the CHRE has an advisory role rather than a regulatory one, that would not be appropriate. In view of that, I hope that my hon. Friend will withdraw his amendment.

Kelvin Hopkins (Labour, Luton North)

I thank my hon. Friend for his reply. I am disappointed that he has not accepted the amendment at this stage, but I understand his argument. I hope he will recognise that there is a concern about making absolutely certain that, in the future, patients are strongly represented in relation to health care professionals. There was some suggestion that the wording was an oversight, and it is interesting that he has said there was at least some discussion about the alternative wording. I hope the spirit of the amendments will infuse the Government’s future legislation on these matters, and I beg to ask leave to withdraw the amendment.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following: Government amendment No. 122.

Government new clause 6—Powers and duties of Council for Healthcare Regulatory Excellence.

Amendment (a), in line 7, leave out ‘investigating particular cases’ and insert

‘reviewing cases for the purposes of audit’.

Stephen O'Brien (Conservative, Eddisbury)

In many ways, it is amendment (a) that I need to address, as that is our amendment to Government new clause 6, which the Minister will no doubt give his reasons for in a second. The new clause amends the National Health Service Reform and Health Care Professions Act 2002, and relates to the investigative powers of the CHRE. The White Paper “Trust, Assurance and Safety” specifies that the Government will ask the CHRE to review a sample of cases. The Government’s new clause could be interpreted as giving the CHRE a power to investigate individual cases, which is not consistent with the general purpose of audit. The amendment to new clause 6 would therefore remove any confusion about how this audit would be conducted.

There is a real concern that, as it stands, the drafting of the legislation could give rise to confusion about the purpose of a power given to the CHRE. The powers would allow the CHRE to look at individual cases as a quasi-appeals process, rather than for the purposes of identifying suggested improvements in performance. Patently, if one looks at individual cases—from which, it may be claimed, lessons might be learned—rather than at a sample of cases, the danger is that it could become a quasi-appeals process and start to be hijacked, particularly by some eagle-eyed lawyers who, no doubt, will pore over all this. Of particular concern is that it could also cause confusion with CHRE’s current powers, but not when OHPA is set up to appeal against decisions by the fitness to practise panels of each regulatory body. We need to look at both the transitional arrangements and that potential overlap. There will, of course, be ongoing cases, and we need to be very careful that we do not end up with parallel tracks, at least for a period of time, operating under different systems. One could only imagine the number of challenges there might be to that process.

There is also the further question of independence. CHRE is an organisation that is directly accountable to the Secretary of State, and it would be better if any appearance of political pressure for CHRE to look at individual cases were removed. That is a fairly comprehensive justification for the amendment, which would clear up hon. Members’ concerns.

I hope that the Minister will outline why the CHRE is limited to health care only. We touched on this, but it remains unresolved. Its role is not to oversee social care regulators. There is no independent oversight of the four social care councils, whereas the nine regulators of health professions are scrutinised by the CHRE. The social care councils regulate 110,000 registrants and there are more than 2.3 million service users in the UK. Each council has its own plans for phasing in new additions to their registers in the coming years, which on their estimates could total over 250,000 new workers. Health and social care work is an increasingly integrated process. Patients and service users should be confident in shared standards of behaviour and procedures when things go wrong.

Sandra Gidley (Liberal Democrat, Romsey)

I wanted to raise a few general stand part comments, which are similar to those raised by the hon. Gentleman. The clause officially changes the name of the Council for the Regulation of Health Care Professionals to the Council for Healthcare Regulatory Excellence, although in practice it has had the latter name for some time. Currently, it promotes best practice and consistency of regulation among nine bodies representing medical professions: chiropractors, dentists, doctors, opticians and related people, osteopaths and the Health Professions Council, which encompasses a range of professionals, nurses, midwives and pharmacists.

The aim elsewhere in the Bill is to join up health and social care inspection, but it seems that that has been missed in this part. What is lacking is any kind of joined-up thinking between the regulation of health professionals and regulation of social care professionals. It makes sense, therefore, at some stage, to bring the General Social Care Council for England and the related devolved bodies under the umbrella.

I thought that rather than try to move an amendment at this stage, as all the others have failed, it would be useful to introduce the principle as part of the stand part debate. I hope that the Minister will acknowledge that this is a very good idea, because it cannot be right that a nurse in a nursing home and a social care worker in the same environment are regulated by two bodies which may not be united in the way they oversee their respective professions and understand best practice.

I admit that, when I met the CHRE, I questioned whether it had given any thought to this matter. It said that it had not. It later got back to me saying that it had spoken to a few people in the social care environment and the feedback had been positive. If the Minister thinks that this is a good idea, perhaps he will consider tabling an amendment on Report, which we may be minded to support.

Ben Bradshaw (Labour, Exeter)

New clause 6 amends section 26(3) of the 2002 Act to clarify that the Council for Healthcare Regulatory Excellence can investigate individual cases solely for the purpose of providing general reports on the performance of regulatory bodies. Amendment No. 122 is a necessary consequential amendment, because the new clause has a UK extent.

The new clause does not confer any additional functions on the council, but means that we will avoid possible disputes about whether the council has the power to consider individual cases when making investigations and reporting on the performance of statutory functions of regulatory bodies. Amendment (a) to new clause 6 would replace the words “investigating particular cases” in proposed new section 26(4)(c) of the 2002 Act with the words:

“reviewing cases for the purposes of audit”.

I think that the hon. Gentleman’s intention in the amendment is the same as ours—to avoid extending the competences of the new body. However, we are concerned about the word “review”, because a review is usually associated with the ability of an organisation to reconsider the evidence and facts of a case with a view to confirming, amending or overturning a decision. New clause 6 has the same intention, and will make it clear that we are not giving additional functions to the council that would provide it with the power to overturn decisions, to re-examine evidence in individual cases or to reconsider the original decision. Indeed, such a power would be inconsistent with the general functions and purpose of the council.

The hon. Member for Romsey asked why we are not extending the remit of the CHRE to social care workers. I am advised that that was carefully considered during the Bill’s early stages. However, because social care workers are not generally regarded as health professionals, the regulation of whom is the subject of this discussion, the view was taken that the remit of the CHRE should not be so extended. However, I shall ask for more information on that and maybe write to her about it.

Stephen O'Brien (Conservative, Eddisbury)

I am conscious that this is a clause stand part debate, but we are also talking about amendment (a). I am equally concerned that “review” carries some of those implications mentioned by the Minister—perhaps that is my legal training coming back to haunt me. I am more than happy, therefore, not to press amendment (a) to a Division. However, I also think that “investigating” implies that there will be an outcome to an investigation. It might be worth reconsidering that in order to determine whether more felicitous language could be used to achieve what we both want.

Clause 106

Kelvin Hopkins (Labour, Luton North)

I beg to move amendment No. 250, in clause 106, page 52, line 7, leave out ‘one executive member’ and insert ‘two non-executive members’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 52, in clause 106, page 52, line 13, leave out ‘three non-executive members’ and insert ‘one non-executive member’.

No. 251, in clause 106, page 52, line 13, leave out ‘three’ and insert ‘seven’.

No. 53, in clause 106, page 52, line 14, after ‘State’, insert—

‘( ) two non-executive members appointed by the Appointments Commission.’.

No. 163, in clause 106, page 52, line 14, after ‘State’ insert—

‘( ) one non-executive representative of the regulatory bodies.’.

No. 252, in clause 106, page 52, line 15, leave out ‘two executive members’ and insert ‘one executive member’.

Eagled-eyed Members will have noticed that amendment No. 365 refers to leaving out “one executive member”, when it should say, “one non-executive member”. I mention that to ensure that we are all singing from the same hymn sheet.

Kelvin Hopkins (Labour, Luton North)

The amendments deal with the membership and composition of the CHRE, and would, among other things, increase the number of Scottish members from one to two and the number of English members from three to seven, and cut the number of CHRE executive members from two to one. If the overriding objective is a UK-wide approach to professional health care regulation, we need to acknowledge the need to continue and strengthen the relationship with Scotland, something that I suggest is politically important at the moment—I do not think that any Scottish Members are present today, but I hope that if there were they would support what I am saying—by having a more Scotland-specific view. Other UK-wide bodies, such as the Food Standards Agency, have two non-executives from Scotland, so why not the CHRE?

There is increasing fragmentation of health care across England, and CHRE needs to be able to reflect that in its composition, diversity and size. The extra English members will also provide reassurance that the CHRE council has the capacity to reflect a range of experience and expertise to span existing and additional functions indicated in the Bill. The CHRE’s senior executives already prepare council papers, attend, contribute and sit alongside council members and have considerable opportunity to influence CHRE decision making before, during and after council meetings. It would be more appropriate, and in keeping with the spirit of the White Paper, to focus on strengthening the CHRE’s lay membership. Our amendments are designed to achieve that through increasing English and Scottish membership, and therefore the council’s capacity to be, in the words of the White Paper, a truly

“authoritative independent voice for patients on the regulation of professionals, providing expert advice on policy”.

I think that I have made the case, and hope that my hon. Friend the Minister will be sympathetic to it.

Stephen O'Brien (Conservative, Eddisbury)

I think that what the hon. Member for Luton, North is trying to achieve is not dissimilar to what we want to achieve. The power of appointment is always a difficult area, because at this stage it can look rather benign, but it can in practice prove very influential and representative.

Our amendment. No. 52 would limit the Secretary of State to appointing one non-executive member in line with one from Scotland and one from Wales. Amendment No. 53 is consequent on that, giving the Appointments Commission the power to appoint the other two. The question that the provisions pose to a Government who purport to believe in devolution is why the devolved Administrations are in this context subordinate to the Secretary of State. Our amendments Nos. 52 and 53 are intended to obtain equality, in effect, between the Secretary of State and his counterparts in the devolved Administrations, notwithstanding the fact that, to go by the Secretary of State’s response when challenged on Second Reading, all appointments are likely to be devolved to the Appointments Commission in any event. I seek some guidance about representative capacity.

Amendment No. 163 would leave on the CHRE some representative of the regulators. While in my view, currently, the council of 19 members, with every regulator represented, might be unwieldy, surely it is not right that their voice should be completely silenced, which is why the amendment would preserve it.

Ben Bradshaw (Labour, Exeter)

The reason we are reforming the Council for Healthcare Regulatory Excellence is to ensure that it fits with the new regulatory landscape, including shifting its role from being the sum of the existing regulators to being the independent voice of the patient. Part of the change, we believe, merits reducing the size of the council from the rather large membership of 19 to nine—seven non-executive and two executive. That is consistent with the Government’s general approach in trying to make the professional regulatory bodies more board-like and strategic.

The amendments would significantly increase the size of the council, bringing it back up from nine to 16, and would alter its make-up by adding a non-executive member representing the regulatory bodies. Amendment No. 53 specifically would add two further non-executives appointed by the Appointments Commission alone. As I have said, it is already our intention for the Secretary of State to arrange for his appointments functions to be exercised by the Appointments Commission anyway, which I hope renders the amendment unnecessary.

I am particularly concerned about amendment No. 163, because of the point that I have just made. I am not clear whether the regulatory bodies would collectively nominate the member. The important point to note, however, is that the function of the council is changing, so that the CHRE can promote the interests of patients and members of the public in relation to the performance of regulatory bodies and be an authoritative independent voice on the regulation of professionals. It is not appropriate for regulatory bodies themselves to delegate or to send a representative to the body that regulates the professions.

On the point about Scotland, I hope that I can reassure my hon. Friend the Member for Luton, North. The change has already been agreed, and the Scottish Parliament has agreed to legislate a consent motion for the Bill. It is therefore content with the level of Scottish representation. I was trying to find out about the size of the FSA board and whether there are similar plans to downsize it, but I have not managed to do so in the time available. If I can find that out offline, I will let my hon. Friend know.

Amendment No. 252 would decrease the number of executive members to just one. That would not be consistent with usual practice among other arm’s length bodies sponsored by my Department and others. For example, it is common practice for regulatory bodies to include their finance director on the board or council, and it obviously makes sense to allow the CHRE to follow that example if it so wishes.

In the light of those reassurances, I hope that my hon. Friend and the hon. Member for Eddisbury will not press their amendments.

Kelvin Hopkins (Labour, Luton North)

I thank my hon. Friend for his response, particularly on the Scottish point, and I entirely accept what he says. As he may recall, emphasis was placed during the hearings on the importance of having diverse representation on all health bodies, particularly in constituencies such as mine, and it is important for people from minorities to be genuinely represented. I will not press my amendments to a vote, but I hope that my hon. Friend will seek to ensure that diversity in gender and everything else is properly reflected in public appointments to all these bodies.

Stephen O'Brien (Conservative, Eddisbury)

I shall not press my amendments to a vote because we have had our debate, and it has been helpful to have a bit more clarity from the Minister on the issue, although we may return to it. Clearly, this is an important issue, and I dare say that we shall all do some more thinking about it.

Kelvin Hopkins (Labour, Luton North)

I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 164, in clause 106, page 52, leave out line 27.

The amendment can be dispatched very quickly, and I almost feel inclined to say, “Give us a break.” The clause seeks to replace the word “chairman” in the 2002 Act with the word “chair”. I could do a complete rant about political correctness. We have all moved on and we do not need to go back and completely redraft everything. I really think that the provision smacks of “Animal Farm”, and we could do without it. I therefore hope that the Minister will accept my amendment so that we can move on quickly.

Ben Bradshaw (Labour, Exeter)

I imagine that the Equal Opportunities Commission would take exception to being compared to “Animal Farm”—

Stephen O'Brien (Conservative, Eddisbury)

I was not talking about the commission.

Ben Bradshaw (Labour, Exeter)

Yes, but it is the commission’s recommendation that we are carrying out by replacing the term “chairman” with the term “chair”. If the hon. Gentleman really wants to take up the Committee’s time by debating the issue at length or putting it to a vote, that is his call.

Stephen O'Brien (Conservative, Eddisbury)

It is not worth the time. I beg to ask leave to withdraw the amendment.

Clause 107

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 207, in clause 107, page 53, leave out lines 13 to 17.

The amendment seeks to remove the Secretary of State’s power to direct the CHRE. The council is another of those so-called independent bodies in the Bill whose governance leads inexorably back to the Secretary of State. In response to a question from my hon. Friend the Member for Tiverton and Honiton during the evidence sessions, Lady Justice Smith said that,

“it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important. ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42.]

On the basis of that, I rest my case.

Ben Bradshaw (Labour, Exeter)

As I have said before in relation not just to the CHRE but to the Healthcare Commission, there is no intention to fetter the body’s freedom. The reason for this power is to ensure that, where necessary, a Secretary of State can ask the council to prioritise certain areas of its work load over others: for example, in cases in which there is particular public concern about a certain regulatory issue, or in which the expert input of the council is required in a particular Department of Health project. The powers could also be used to require the council to consult specific bodies, including the public, in undertaking its duty to inform and consult, which we discussed earlier. I hope that in the light of that explanation the hon. Gentleman feels reassured enough to withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

Yes. We will probably have to allude to the matter on another occasion. I beg to ask leave to withdraw the amendment.

Clause 108

Kelvin Hopkins (Labour, Luton North)

I beg to move amendment No. 255, in clause 108, page 53, line 37, leave out ‘seek the views of’ and insert ‘consult’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 256, in clause 108, page 53, line 40, at end insert—

‘(c) such other organisations representing patient and public interests as the Secretary of State shall by regulation specify.’.

No. 257, in clause 108, page 53, line 41, after ‘matters’, insert ‘of policy’.

No. 258, in clause 108, page 53, line 41, at end add—

‘(5) The Council must—

(a) consult with public and patient organisations in England, Scotland, Wales and Northern Ireland on its work programme, including—

(i) the standards,

(ii) minimum requirements, and

(iii) supporting evidence, to be used in its regulatory performance review, and

(b) publish at least annually a report on its consultations in England, Scotland, Wales and Northern Ireland held in accordance with this section.’.

Kelvin Hopkins (Labour, Luton North)

The amendments seek to strengthen clause 108 by inserting in subsection (4) the word “consult” instead of “seek the views of”. It seems strange that the word “consult” is included in the clause heading and is then softened further down to “seek the views of”. The process of seeking views is less active, less mutual and weaker than the process of consulting. Consulting is a two-way process; “seeking the views of” is a one-way process. I, therefore, ask my hon. Friend the Minister to consider seriously this amendment.

The other component of my amendments would give more powers to my hon. Friend, or the Secretary of State, to specify other organisations that might be consulted. Proposed subsection (4)(c) would give the Secretary of State—in addition to the council—powers to specify other bodies that might represent patients and the public. It seems to me that giving extra powers to the Secretary of State might appeal to my hon. Friend, and I hope that he accepts the amendments. The firming up of the clause would be welcomed by those who are concerned about public and patient representation in health.

Ben Bradshaw (Labour, Exeter)

As my hon. Friend has rightly pointed out, the CHRE will have a new duty to inform and consult the public about the exercise of its functions in the clause. That comes on top of the new main objective that we have already discussed about aligning the exercise of its duties with the interests of both patients and the wider public, and the improvement in the new board structure, which will be mainly lay with no regulatory body representatives. His amendment, however, would tie the CHRE’s hands as to how it consults. The view of the council’s current chief executive, which we share, is that such formal consultation as my hon. Friend refers to may not always be the most appropriate way to take soundings from people.

I am sure that my hon. Friend will know from his own experience that formal consultation with particular groups can be dominated by what one might unkindly call groups of self-selecting busybodies, rather than reflect a true sense of public feeling in a particular area. The council’s chief executive thinks that it may need the flexibility to use a quorum, academic studies, focus groups and other means of engaging with patients, the public and stakeholders, depending on the gravity and complexity of the issue at hand, as well as traditional formal consultations. It would not be helpful to tie the council to the latter.

We believe that the CHRE will be capable of making the right decisions about how to consult on particular issues, but as my hon. Friend has probably noticed, it will be possible use the new Secretary of State power to issue directions to the council on the manner in which it must exercise its functions. We have that safeguard if we feel that it is not consulting properly. As we discussed earlier, the council also has the obligation to promote best practice and good regulation, which will include good consultation.

Stephen O'Brien (Conservative, Eddisbury)

As the Minister has seen, I did not participate in the debate on the amendments, but he has just prayed in aid the fact that he could use the Secretary of State’s reserved power to direct. That is what causes us some concern about independence. There is tension in the Bill between seeking to protect by having a power of direction and convincing many of us that there will be sufficient independence.

Ben Bradshaw (Labour, Exeter)

We think it a sensible balance, which will meet the concerns expressed by my hon. Friend that the body might not consult adequately. It will provide a way for hon. Members to express their concerns, so we think that it is a sensible power to keep. We do not expect to have to use it.

On my hon. Friend’s amendment No. 258, paragraph 16 of schedule 7 to the 2002 Act already requires the council to

“prepare a report on the exercise of its functions during each financial year”,

so we do not think the amendment on that matter is necessary. The report that the council is required to table under the 2002 Act should include details about how it has undertaken its duty to consult and inform the public.

Although the amendments in the group are well intentioned, they are not strictly necessary. They are more prescriptive than the proposals in the Bill and would not enable anything that is not already possible given the council’s existing powers. In that light, I urge my hon. Friend to withdraw the amendment.

Kelvin Hopkins (Labour, Luton North)

I am rather disappointed that my hon. Friend has not at least accepted the amendment to substitute “consult” for “seek the views of.” There is a difference, and I know from my experience of dealing with health bodies in my constituency and local area that some health officials—I shall not name names—are less than enthusiastic about consulting the public. They will receive a letter and say, “Thank you very much”, but when it comes to consultation they are less enthusiastic. Sometimes we want to get our point across; we have an active patient and public involvement forum, with a redoubtable chairperson who would undoubtedly be considered a busybody by the health authority but is a fine representative of my constituents and a personal friend of mine.

Angela Browning (Conservative, Tiverton and Honiton)

I wish to articulate the thought that went through my mind when the Minister talked about “busybodies”. I can think of several people whom he might describe as busybodies, who are usually fine women of a certain age past whom no detail goes without their ensuring that it gets to the right desk. We need a few more busybodies examining what is going on in the health service. The fact that they do that in their free time is an asset.

Kelvin Hopkins (Labour, Luton North)

I did not want to start that hare running, but I say to the hon. Lady that I will not pass on the word “busybody” to my dear friend locally who is chair of our PPI forum and does a splendid job, especially as she happens to be, privately, a member of our party as well, which would probably automatically come under the general category of busybody. Our job as representatives is sometimes to be busybodies and I am a bit of a busybody myself. I hope that the Minister will think further on these matters and the wording of the provision and perhaps return with an improvement to the clause at a later stage. I beg to ask leave to withdraw the amendment.

Clause 109

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 234, in clause 109, page 54, leave out lines 7 to 11.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 235, in clause 109, page 54, line 27, leave out from ‘Committee)’ to end of line 31.

No. 236, in clause 109, page 54, line 38, leave out from ‘Committee)’ to end of line 42.

Sandra Gidley (Liberal Democrat, Romsey)

This is a probing amendment. Clause 109 amends section 29 of the Health Care Professions Act 2002, extending section 29 of the Act to enable the CHRE to refer to the High Court cases relating to impairment of fitness to practise on grounds of ill health. That is in addition to its existing powers to refer cases relating to misconduct and professional competence.

I tabled the amendment because of concerns relating to the fact that, currently, health cases are generally private proceedings. I have concerns about sensitive details on an individual’s health eventually being made public in ways that might not be helpful to that individual. My concerns might be covered by clause 98(4)(d), but I am still not sure whether that is the case, despite some discussion about it this morning.

I hesitated slightly about drafting the amendment in this way, as I did not want to create a loophole whereby an individual who realised that they had done wrong could somehow try to present a case as a health case. An argument might be made for something to be heard by a health committee rather than a disciplinary committee. I was not sure how that might work in practice. Clearly, if that was a consequence of my amendment, it would be problematic, because we are trying to achieve greater openness about misdoings generally and it would be contrary to that spirit.

However, it would be helpful if the Minister could explain why it was thought necessary to widen the scope of CHRE referrals. Has he any examples of where the system has failed? Bearing in mind that the cases referred are those the CHRE believes too lenient, does he not have concerns that if the CHRE has got it wrong the personal details of people on whom a judgment has been made may be subjected to greater public view than necessary? Can the Minister clarify how many cases have been referred to the High Court to date by the CHRE and what proportion of them have been judged by the Court to be too lenient—in other words, where it has upheld the concerns of the CHRE to a certain extent?

Ben Bradshaw (Labour, Exeter)

I cannot give the hon. Lady the figures that she asks for but I shall endeavour to find them and let her have them. However, she accepts in her comments that there may be circumstances in which the physical or mental health of a health care practitioner may impact on their conduct or ability, and consequently have implications for the safety of their patients or the wider public. We believe therefore that the health committees of regulatory bodies have a role in ensuring patient and public safety in the same way as conduct and competence committees, because patient safety must be the priority.

However, we fully support the need to handle cases of ill health with sensitivity, as we discussed when we covered hearings in private. The need for better support and rehabilitation for professionals struggling with health problems was recognised in our White Paper, but whatever the cause of poor performance, patient safety must come first, and we are clear that professionals who pose a risk to patient safety must be identified and dealt with appropriately but sensitively.

Sandra Gidley (Liberal Democrat, Romsey)

I am still not entirely clear about the circumstances in which private details, such as mental health details, will be kept private. All the professions will be interested in greater clarity about how the provision will work in practice, because we are talking about somebody’s potential livelihood, and about cases in which people might get better. Mental health problems are rarely understood and are often viewed unsympathetically by those without expertise, and I do not want to be party to legislation that has the potential to lay details of somebody’s mental health problems open for all to see. At a later date, the person might fully recover, but that knowledge of their problem might prevent them from obtaining employment. I understand that it is a stigma problem, but it is essential that we get the balance right. However, I beg to ask leave to withdraw the amendment.

Clause 110

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 54, in clause 110, page 56, line 27, at end insert—

‘(7A) The responsible officer must be clinically qualified.’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss amendment

No. 80, in clause 110, page 56, line 35, at end insert—

‘“clinically qualified” means qualified in a manner that the Secretary of State shall by regulation define.’.

Stephen O'Brien (Conservative, Eddisbury)

The clause sets out the framework for responsible officers, so obviously many Committee members will have been waiting with bated breath to reach this crucial aspect of the Bill. Amendment No. 54 would ensure that the responsible officers were clinically qualified professionals—to be determined by regulations. Responsible officers should be medical professionals rather than health care managers or management consultants, for example. Doctors have also expressed concern that responsible officers should not be the same medical directors of primary care trusts under whose authority the various doctors work.

This discussion should be framed by the concerns raised by Lady Justice Smith during her oral evidence. She told us:

“I really find it difficult to know how responsible officers are going to work and what role they will play in revalidation. I do not get that from this Bill.”

She continued:

“I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42-43, Q83.]

If PCT medical directors are also the responsible officers, it will give them too much power over individual doctors, and they will have the power both to discipline and to sack the doctors on their patch. PCT medical directors are already busy, and they have many priorities. In her oral evidence, Lady Justice Smith said:

“I am really unhappy about that for several reasons...I do not like the idea of a medical director, who already has a lot of jobs, having to take on responsibility for revalidation as well as all his other jobs. I think that that is too much”.

Her desire for making it a separate role arises partly out of her concern that

“the revalidation process should be clear and understood...it should be summative and a proper test, and...it should not just involve shuffling pieces of paper around and rubber-stamping them”.

The Medical Protection Society has made the same point.

The role of the responsible officer could cause serious conflicts of interest. Suppose that a local doctor prescribes an essential cancer drug for a patient, which puts strain on the PCT’s budget, and he suddenly finds himself at the wrong end of an inquiry by the local GMC affiliate medical director. How would the GP know that the inquiry was genuine rather than contrived? How would the GMC affiliate medical director know that his regulatory decisions were not being influenced by pressure from the PCT chief executive? Lady Justice Smith noted the reverse situation. She said:

“There is a real tension between, on the one hand, an employer’s desire to keep all of his employees in post, revalidated and fully qualified, and, on the other hand, the possible need to refuse to revalidate somebody, in which case their services might be lost entirely, diminished or put on hold, from which problems might arise. I am unhappy about that. I cannot tell how it will work, but it looks to me that it might be like that.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 43, Q83.]

Angela Browning (Conservative, Tiverton and Honiton)

We discussed that matter when we took oral evidence and it is important to get the clause right. Within certain disciplines, particularly in hospitals, there are often shortages of doctors. Because of the need to meet targets and keep patient throughput, the medical director who undertakes revalidation is going to be in a difficult position. He must do his job as required by the primary care trust, or according to the Government’s requirements sent from on high, and, at the same time, he must be responsible for revalidation. One could see all sorts of tension arising in such a situation. I am talking narrowly about doctors in a narrow sense, but there are many different types. The Government need to get the measure right, so that the pressure I described does not end up on medical directors. Their role should be clearly defined and the problem I described, which was clearly identified in the oral evidence, should be resolved in the Bill.

Stephen O'Brien (Conservative, Eddisbury)

I saw the Minister nodding when my hon. Friend talked about getting it right, so, in that sense, we are at one. My hon. Friend highlighted the fact that every system in the world and every law that we pass here deals with human motivation and is man-made—nothing comes down from on high. However professional, experienced, responsible or extraordinarily intelligent the people we are talking about are, we cannot escape the fact that people are influenced by motivational factors.

The only way to address my hon. Friend’s point is to take an extreme case—it is absolutely germane to what I am saying. We might find such an event inconceivable, but, tendentiously, we live under a regime of top-down targets rather than the bottom-up approach that we keep urging the Minister to adopt. Targets drive the performance criteria and measurements. However, anyone in any walk of life who is involved in management knows that what one measures is what one gets. If measures and targets are put in place, and if, as in so many cases, they have year-end performance bonuses and money attached, and if one is desperately hoping that by achieving those targets, one will have a sufficient bonus that means that one can at last put the new kitchen in place, one would have a motivation to aim for the targets. That is what targets are for. However, if that motivation runs counter to the shortage of doctors in hospitals, for instance, we end up with a tension. The latter situation might lead to a target being missed and a bonus not being paid. Whatever explanations may be given or whatever exceptional circumstances might be pleaded at the time that that is negotiated, on a human resources department basis, it is insufficiently clear in the Bill.

My hon. Friend pointed out this issue in her very timely intervention, and in reply I referred to an extreme circumstance, which I obviously do not believe would or should happen. None the less, in doing so I have rather put it on the record that it is not completely beyond the realms of possibility. That highlights the issue that we are trying to address here. I accept that the Minister is trying to push this issue forward, so that we get it right. However, it is only right that we understand the tension that we are up against.

It is probably as well to remind ourselves that Dr. Meldrum of the British Medical Association said:

“It comes back to the whole business of having confidence. We are aware of people—medical directors in trusts, or whoever—whose loyalties have been primarily to their trust. We are not saying that their loyalties should be to the profession, but they should be to the wider benefits of health care. It is about achieving that balance by a degree of separation of function and a degree of separation of loyalties from the employer, and having an effective and practical operation. That is quite difficult; I accept that.”—[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 67, Q149.]

Primary Care Trust medical directors are employees of PCTS, so their impartiality in the regulatory management of local doctors cannot be guaranteed; it is very much of a piece, this. The responsible officer should be completely independent of the local PCT. That way, he or she is more likely to command the trust of local doctors, which, in my view, is an absolutely essential element of making this process work well and ultimately making the scheme more successful. I hope that the Minister will take the opportunity to confirm whether the medical directors will be, or are likely to be, the responsible officers, and also whether they will be the GMC affiliates.

During his oral evidence session, the Minister, under questioning from my hon. Friend the Member for Guildford, said:

“We are not making a specific ruling as to who it should be, just as to what qualifications the person should have. We think that responsible officers must be senior doctors with a current GMC registration.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]

I think that we would all sign up to that. He continued:

“There was much discussion on Tuesday as to whether it should be a medical director, and that would be perfectly appropriate. In fact, a lot of the good medical directors are, in practice, already doing this job on the ground. Yet we are not saying that it has to be a medical director.” ——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]

So, I hope that the Minister will take this opportunity to clarify that his statement means that there will be true freedom at a local level to choose not to have the medical director as the responsible officer and that the PCTS will not be encouraged, or even coerced, either by policy or funding issues, to merge the two roles.

It is that funding issue that really needs to be thought through, so that there are no perverse incentives, or indeed target-driven issues, that then drive behaviour, both in terms of who should be the responsible officer and what conflicts they may feel they are facing, even accepting that the extreme example that I gave, by way of argument, is highly unlikely to happen in practice; I would like to believe, anyway, that it is unlikely to happen.

I was also concerned about another matter. The Minister responded to the point made earlier by Findlay Scott during the GMC’s oral evidence that

“adequate resources must be provided.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 53, Q107.]

In response, the Minister stated:

“We are making provision in the Bill, if necessary, for them to take on assistants and extra resources to help them do the job if they want somebody.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q243.]

The Minister refused to allocate extra money to this process, instead choosing to suggest that

“We are giving extra money to PCTs all the time.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q244.]

With respect, I did not think at the time that that was an adequate response and I hope that the Minister will take the chance now to flesh out what he thinks will actually be the case.

Not only will this measure impact on how PCTs will choose to interpret the responsible officer role, but it goes no way to addressing the concerns about training. I accept that the Minister gave me a positive response when I raised the issue of training before, so I hope that I can be optimistic about the way that he tackles the issue in this context.

I raised the issue of training when the Minister was giving his oral evidence. I should be grateful if he would tell the Committee, first, who will be funding that training; secondly, when he expects the

“expert advisory group we are developing”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q245.]

to agree the “competences”; thirdly, when he expects negotiations with providers of training to begin, and finally, how much he expects those contracts to cost.

Lastly, during the GMC’s evidence, the Committee also touched on the issue of soft information sharing. I do not want us to get into all the jargon that surrounds data sharing, but I suspect that this matter will be debated by others at a later stage. I think that the Liberal Democrats have tabled an amendment to clause 112.

However, there are concerns that if the responsible officers, without the employee’s knowledge, share information that is unproven, in the sense that there has been no investigation, or damaging, in the sense that it might affect an employee’s reputation, that could be the basis of a claim that the employer had breached an implied term of trust and confidence in their contract. Those points often lead to the most contentious and litigious issues, so it is advisable that they should be avoided if possible. If we can design measures to avoid them at this stage, we will have done our job better.

Sandra Gidley (Liberal Democrat, Romsey)

The establishment of responsible officers at local level is an attempt to have greater local resolution of problems, and we generally support that broad aim. However, I concur with many of the reservations highlighted by the hon. Member for Eddisbury. I do not want to repeat too much of what he said, but even as he was talking, more questions were being asked in my mind. For example, it is all very well having a responsible officer who might be a medical director or a director of PCT, but a portion of the work force might do local work or work across PCTs, and I am not entirely clear who will be the responsible officer in that case.

If a problem is highlighted in an area, will the responsible officer deal with it, or will an individual living in a certain area have to have an overall responsible officer. I ask that because I am aware that the responsible officers for some of the GPs in my constituency would be in the primary care trust, but a small number work a couple of sessions at the local hospital in specialisms where there is a demand. If there is a problem in the hospital, will they have to answer to the responsible officer in the hospital, as it is not clear what will happen in those cases or how those people will join up the thinking if there are concerns about an individual?

There is also a problem with responsible officers having powers to put recorded concerns on a doctor’s record. Those concerns need to be substantiated in some way to avoid personal vindictiveness—let us not pretend that it does not happen—and so that there is a right of challenge by the individual, because a doctor could almost be held to ransom by the threat of having something put on the record.

There can be disagreements about the way of practising, and I can think of a local case where there was a big disagreement between a consultant and a couple of other consultants concerning procedures that he was using. It was difficult to say who was right and who was wrong. One consultant was convinced that he was right and had good evidence to prove his practice was appropriate, and the other felt that the behaviour of consultant A was irresponsible. I do not want to go into too much detail on that, but in such cases it is not clear who provides the ultimate sanction. One of the problems in that case was closely associated with the medical director, so where is the right to go elsewhere if someone is unhappy?

With regard to training, it is highly likely that a responsible officer could recommend that an individual whose practice, although not dangerous, was thought to be of concern and was in need of certain training if a few alarm bells had been sounded. We all know what happened to training budgets last year. Within a primary care trust, would there be tension between the financial pressures? Would a responsible officer in a senior position feel that he had a duty to balance that in some way?

Anne Milton (Conservative, Guildford)

I reiterate my interest in that my husband is a medical director and, arguably, a responsible officer—before their invention. The hon. Lady has highlighted the crux of the problem, which is the tension between competency—that is what the responsible officer will be looking at—financial pressures and the resources available. During the evidence session we did not hear from the Minister how he intends to resolve that. Does the hon. Lady agree that, until we can take the step of employing responsible officers, that does need to be resolved?

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Lady has hit the nail on the head, which is why I am posing some questions here and now. I am not sure how this will all be resolved in practice. Bearing in mind that where doctors go other professions are likely to follow—with different employment models—my overriding concern is the potential blurring between employment and regulation functions. I was quite surprised when I heard Lady Justice Smith say that responsible officers would have an interest in keeping their staff because my immediate concern was the exact opposite, in that if a member of staff was proving problematic, there could be a search-and-destroy attitude.

Let us look at the example of a whistleblower who highlights to their local Member of Parliament certain hospital practices with which they are not happy. The hospital would obviously not be happy with the fact that those practices were being highlighted and the medical director might be put under pressure to find some problem with the whistleblower that could be used to bring pressure to bear, such as a threat to their employment record. It is essential that there is a dividing line between those functions. It is easy to see how the role of the responsible officer could be abused. I would like to think that all responsible officers would resist such temptations, but I suggest that there is a finite chance that the pressure put on the responsible officer would mean that the laudable aim of local resolution would not be achieved whereas games playing could be achieved. Potential manipulation of health professionals in that way is a dangerous road to take.

Ben Bradshaw (Labour, Exeter)

It is worth reminding ourselves that the setting up of responsible officers to improve clinical governance at local level was another of Dame Janet’s main recommendations. Far from the examples given by the hon. Lady, of which we do need to be cognisant—I will come on to some of the safeguards in a moment—most of us will have come across examples in our constituencies, in either the primary care or acute sector, where certain practices have been allowed to continue for far too long and issues have not been addressed. We have come upon some such examples ourselves. That is exactly what the role of the responsible officer is intended to try to address.

I was grateful to the hon. Member for Eddisbury for reminding me of my words in the evidence-taking session. I do not intend to repeat them, but I do wish to reassure the hon. Gentleman that it is our intention that responsible officers will be medically qualified and a registered medical practitioner. We shall lay that down in regulation. Indeed, many of these issues will be resolved in regulation. I would also like to point out to him that the amendments would not achieve the objective that he seeks. Although they would restrict the role of a responsible officer to those who were clinically trained, it would still be possible for responsible officers’ duties to be undertaken by members of other professions or professionals who have allowed their registration to lapse, or indeed, people who have never been registered with the national regulator. Even if the hon. Gentleman wanted to press the amendments, they would not achieve the ends that he seeks.

On the potential conflict of interest if responsible officers are medical directors, we have made it clear that while we do not seek to be prescriptive, we think that a medical director would be perfectly appropriately for this role. Many of the best medical directors are already carrying out most of the duties that responsible officers would be expected to carry out, in that they already have an important role in clinical governance. It is important that all healthcare organisations have effective clinical governance to protect patients, and the role of responsible officer will strengthen that by putting some of these functions on a statutory footing. The responsible officer will be responsible for identifying and managing cases in their organisation where there are concerns about a doctor’s performance. The management of those cases would include investigating the circumstances, instigating remediation and, where appropriate, referring cases to the GMC for further action. To respond to questions asked by hon. Members earlier, responsible officers will not take the action or refuse the revalidation themselves. We believe that the role is entirely consistent with any good health organisation’s role in protecting patients.

The hon. Member for Eddisbury made a plea for the system to be bottom-up rather than top-down, and I entirely agree with him. I refer him to comments made by Sir Graham Catto, who I quote in preference to Hamish Meldrum of the BMA. He said:

“From our perspective, the concept of the responsible officer helps us to bridge what Liam Donaldson described as the “regulatory gap” between what happens locally and what happens centrally. We believe that quite a number of cases that come to us might be much better dealt with at local level before necessarily being escalated up to us.”

He went on to say:

“It would be very helpful, from our perspective, to have people working in the local areas who understood the GMC processes, knew when it would be sensible to refer a doctor to us if they were concerned and could link more effectively with our own staff.”

Findlay Scott, his colleague from the GMC, went on a little later to say:

“We see the appointment of responsible officers as a further strengthening of local governance and as a reinforcement of local responsibilities.”

He went on:

“There is substantial evidence from our procedures that early and effective action could have saved doctors’ careers,”—

that goes back to what I was saying earlier about nipping a problem in the bud, so that it does not come to the situation where a more drastic reaction is needed—

“if problems had been identified sufficiently early and not allowed to drift. Clinical governance has already made a substantial contribution to that.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 52-53, Q105-07.]

In terms of how the responsible officers would fit in with the GMC and its affiliates at national level, they would have statutory responsibilities to ensure that doctors in their organisation are fit to practise and that the right processes are in place to protect patients. The GMC would still be the national regulator for all doctors in the UK. As I have said, responsible officers would not decide whether a doctor was re-licensed. They would make recommendations to the GMC, but the GMC would continue to be the regulator in that regard and responsible officers would be required to liaise with the GMC on individual fitness to practise cases, where responsible officers judged that national sanctions may be required.

As for the safeguards, responsible officers will be subject to exactly the same disciplinary procedures as other doctors. Complaints will be made either through the NHS complaints procedure or to the GMC. We will provide detailed guidance for responsible officers to ensure that they document their concerns only when appropriate.

Anne Milton (Conservative, Guildford)

I do not doubt that the theory is good, nipping poor practice in the bud, but does the Minister envisage it being a full-time post for the average PCC? Will it be one full-time post or two? It would be useful to have some indication as to what he thinks will happen in practice.

Ben Bradshaw (Labour, Exeter)

My current thinking is that it would not require a full-time post. However, an existing medical director, part of whose job is to carry out such functions, might need to employ some support. The role would need to be devised locally. I shall say in a moment why we believe that there will be a need for extra resources and extra support. It will be a requirement under the Bill. Indeed, we are providing for that support through the comprehensive spending review to be announced in the autumn.

We accept that there will be an additional work load, but we expect that those burdens will be containable, the costs being offset by the benefits of improved quality and patient safety, and by obviating the need to escalate the sorts of cases to which I referred earlier and to which the GMC drew attention. Under the Bill, we require organisations to provide the necessary resources for responsible officers to carry out their role and to ensure that organisations that provide responsible officer functions to others are not disadvantaged. The Bill makes provision for responsible officer costs to be provided by those receiving the service.

Training will be developed, through the expert advisory group that we are developing, on deciding the necessary competences for responsible officers. Once we have agreed those competences, we will negotiate with the pension providers to develop and deliver specific training on the role of responsible officers. The sub-group doing that work will include medical directors and GMC, BMA and NHS management, including HR specialists.

I hope that I have reassured hon. Members on the role of responsible officers and how they fit into the general system, and on the support that will be available to them and to local trusts in order for them to do their jobs properly. It is so long ago now that I have forgotten whether we are debating one or more amendments, but however many there may be, I hope that the hon. Member for Eddisbury will not press them.

Stephen O'Brien (Conservative, Eddisbury)

I listened carefully to the Minister. To put it in context, the Minister rightly pointed out that this provision comes on the back of a recommendation from the then Dame Janet Smith, now Lady Justice Smith. In her evidence she said that she could not see from the Bill how it would work, and given the way that the Bill is drafted, one can understand that. The Minister sought in his response to give us some finer grained detail.

We heard about pressure, and not only from my hon. Friend the Member for Tiverton and Honiton, meaning that in certain settings it might be too much of a problem to get rid of somebody. We then heard from the hon. Member for Romsey, who if I interpreted her remarks correctly sought to show why there might be too great a risk of victimisation. A spectrum of risk is obviously being contemplated, and although I welcome what the Minister had to say about training, we are still left with those conflicts and potential misunderstandings.

The Minister said that he expects to see a lot of these matters dealt with in regulation. Given the genuine concern expressed in our debate, I rather hope that the Committee will have the opportunity to see those regulations, at least in draft form, on Report. If that is not feasible, I hope that they will be ready for those who will be considering the Bill in another place. I am sure that that will be an important way of setting the matter in context.

On the same basis as I have done previously, to ensure that the point does not get lost, I would like to press the amendment. It is for no other reason as, looking at the numbers in the Committee, I recognise that I may be adopting a forlorn position. None the less, by pressing the matter, I hope to keep the Minister’s feet to the fire on that point. I hope, too, that we may see the regulations, at least in draft, brought forward when we are considering the relevant measures in the Bill. It is such an important area to get right, not least because we are putting such responsibility on the responsible officer. We must ensure that they are in the best position to carry out the functions successfully. On that basis, I seek the opportunity to divide.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 55, in clause 110, page 57, line 26, at end insert—

‘(5A) In conferring powers under subsection (5), the designated body must have regard to—

(a) patient safety,

(b) the continuing professional development of medical healthcare professionals, and

(c) the continuing professional development of healthcare managers.’.

I was forlorn, indeed bereft, at the results. [Interruption.] I take the sympathetic moans from the Opposite Benches with the sincerity with which they were offered.

The amendment seeks to include in the responsible officer’s role responsibilities for patient safety and the continuing professional development of doctors and health care managers, insofar as they impact on doctors’ performance. I hope that the Minister will find that of interest, given the training commitment that he has so assiduously sought to lay out.

Responsible officers provide the opportunity for a dedicated individual to pick up the early warning signs in, for example, prescribing practice, and to alert for an improvement in performance. In an open system of benchmarking, something on which I am particularly keen, that could be an effective asset to the local and national health economy, and to the professionalism and morale of local doctors.

On the other hand, as we have discussed, the responsible officer could be little more than a revalidating rubber-stamper and a “copper’s nark”. That would have the reverse effect on the profession and, ultimately, would fail significantly to benefit patients and the public. I hope that the Minister will see the point that, by outlining what he expects the day-to-day role of the responsible officer to be, he is thereby able to include experience of and responsibility for continuing professional development in the competency framework currently being discussed by his Department, of which I am aware. The amendment would be useful to help to underpin many of the points that I acknowledge that he has set forward.

Ben Bradshaw (Labour, Exeter)

As we discussed earlier in the Committee, patient safety and the quality of care are the core business of every health care organisation, and the new regime set out in part 1, particularly the obligation to register with a national regulator, is intended to enforce that fundamental responsibility. Health care organisations will need to comply with statutory safety and quality requirements, which will include ensuring that all staff, both clinical and managerial, are appropriately skilled and trained to carry out their duties. Patient safety and the professional development of doctors lie at the heart of the responsible officer’s role, both in relation to the duties under this clause and those proposed under clause 111.

The amendment would require a designated body to have regard to patient safety and

“the continuing professional development of medical healthcare professionals, and...healthcare managers.”

when giving a responsible officer additional duties. That would be in addition to having regard to the responsible officer’s statutory responsibilities.

If the hon. Members intended that responsible officers should consider the impact on patient safety and on continuing professional development when carrying out their primary duties, the amendment would not achieve that. It places a responsibility on the organisation to take those factors into account only when they decide to assign additional duties.

We do not want other duties that might be given to a responsible officer to interfere with the proper functioning of statutory responsibilities. Beyond that, I do not see any advantage to patients or to health care staff in unduly constraining the freedom of health care organisations to combine the responsible officer functions with other appropriate duties—for example, clinical duties or a broader clinical leadership role. The clause would preserve that freedom and I therefore hope that the hon. Gentleman will agree to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am sorry to hear that the Minister has been so advised, but I am sure that the advice would not have been given unless it was meant. If it is appropriate, we can return to the matter on another occasion and on that basis, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

Briefly, I rise to probe the extent of the Secretary of State’s power with regard to the clause. I note from the memorandum on delegated legislation that under the clause, powers are conferred on the Secretary of State in relation to England, Scotland and Wales. The powers are

“to make regulations to designate bodies which shall be required to nominate or appoint persons, to be known as responsible officers, with responsibilities in relation to”

professional regulation—that is on page 51 of the memorandum. Can the Minister explain why the powers are not devolved? Will responsibilities imposed upon primary care trusts in Scotland, and local health boards in Wales through this legislation be recognised in funding through the Barnett formula?

Ben Bradshaw (Labour, Exeter)

I am afraid I will have to write to the hon. Gentleman with clarification on that point.

Clause 112

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 267, in clause 112, page 60, line 25, leave out ‘may show’ and insert ‘shows’.

The clause has the generally laudable aim of ensuring that there is a mechanism for sharing information about health workers. As a general principle, that is to be welcomed. There have been occasions where the system has failed in the past because it has not joined up and earlier, I cited an example of a nurse in a nursing home who was able to practise for some time before her regulatory body caught up with her.

There is a concern about the current drafting. The aim of the amendment is to ensure that the sharing of any information that relates to the conduct or performance of a health worker could happen only if it actually shows that the worker is likely to constitute a threat to the health and safety of patients. The current wording in the Bill says “may”, and that seems to encompass a range of levels of proof. It would only potentially show that a worker may be a threat, and it is not clear how robust that evidence has to be.

The regulations will require NHS trusts and other bodies to provide and share information about health care workers in circumstances where a person may constitute a threat to the health and safety of patients. The BMA identified a potential problem with the clause from an employment law perspective. Clause 112(1)(a) refers to information that

“may show whether a worker is likely to constitute a threat to the health and safety of patients.”

Legal advice received by the BMA shows that if an employer were to pass on an unproven or damaging piece of information without the employee’s knowledge, it could be the basis of a claim that the employer had breached an implied term of trust and confidence in his or her employment contract. The use of unproven information does not indicate what level of investigation there has to have been. Obviously any comments that raise concerns are potentially damaging to an employee's reputation, so the matter would need to be carefully looked into. There is a case for saying that information should be shared only where the employer can demonstrate cause. In effect, that means that there would be a full and proper investigation and that the employee would be informed of the allegations.

It would be helpful to know how and when those powers will be used. Can the Minister clarify the procedures for the sharing of such information, including the need to inform the subject of the investigation at the earliest possible stage about the allegations that are being investigated? What assurances can the Minister give that the information shared would be kept in strict confidence, and to whom will that information be restricted?

Page 61, line 4 defines a “designated body”. Will the Minister clarify what other bodies he intends to prescribe for the purpose of that measure? It is right to say that protecting patients is vital, but the human rights of the health professional also need to be taken into account. At this stage, can the Minister outline the content of the secondary legislation and guidance?

I have a couple of further questions. What are the appropriate circumstances in which unproven information should be shared? If the intention is that the powers will be used only in cases where there is evidence of a significant risk to patient safety and where appropriate investigations are under way, can the Minister give examples of cases where information sharing would be an integral part of the investigation? What guidance will PCTs be given on considering all relevant factors, including assessing the degree of urgency and potential threats to patient safety, and examining the contribution that information from one organisation could make to the investigation before making the decision to share the information? Will the Minister clarify the circumstances in which it may be necessary to share information that is unproven at the time the information is shared? What onus will be on the organisation receiving the information to use the same confidentiality safeguards that it would if it had received the allegation directly from a member of the public?

There is general happiness about the overall intent of the Bill, but the use of the word “may” has given rise to some significant concerns, on which I seek the Minister's reassurance.

Ben Bradshaw (Labour, Exeter)

The amendment would prevent organisations from sharing information—even where proven—that on its own may not be enough to demonstrate a threat to patient safety. However, when such information is put together with other information a pattern of behaviour may be revealed that could put patients at risk. For example, the settlement of a clinical negligence claim does not in itself show that the worker was a threat to patient safety, but repeated claims may show that there is likely to be a threat to patients.

A common conclusion of recent inquiries, including the Shipman, Ayling and Kerr/Haslam inquiries, was that health care organisations failed, both singly and collectively, to join up information that was available to them. We are concerned that the hon. Lady’s amendment would limit their ability to do so. I will come on to the safeguards that she sought in a moment.

I absolutely understand and sympathise with the need to protect health care workers from unfounded allegations and we will therefore ensure that any regulations made under the clause are accompanied by robust guidance, which sets out the necessary safeguards regarding the way in which the shared information is stored and used in the receiving organisation. The basic principles should be that any uncorroborated information be held in strict confidence by the receiving organisation, and that health care workers be told, at the earliest possible stage, of the accusations against them and of the proposed way in which they will be investigated.

In response to the hon. Lady’s specific questions, information on unproven allegations will be shared only under strict conditions of confidentiality and on a need to know basis. There is no question of taking disciplinary action against any professional without a full investigation, in which the truth of such allegations can be rigorously tested through a fair process.

Sandra Gidley (Liberal Democrat, Romsey)

Information could be passed on to another body and later not be proven. It is not clear what means there is of withdrawing such information so that a slur does not unnecessarily stay on a health professional’s record.

Ben Bradshaw (Labour, Exeter)

That is exactly the sort of thing we would need to make plain in the secondary legislation. Soft information should be kept subject to strict controls and confidentiality so as not to harm the reputation of health professionals. Where on the basis of the information available a health care organisation decides that there is a need to investigate further, the professional concerned must be told of the allegation and given an opportunity to give his or her side of the story.

The procedures will be set out, as I already said, in regulations. Guidance will be based on the advice of an expert group that will include the BMA, and that legislation will also be subject to full public consultation. We expect to carry that out later in the year. It is our intention that the guidance include the need to inform the subject of the investigation at the earliest possible stage.

Finally, the hon. Lady sought an example of where unproven information may be shared. One example is where a doctor is employed by two or more organisations and an investigation into a serious allegation has been initiated by one of them. In deciding whether to share that information with a second organisation, the organisation will need to consider the central issues of the nature and strength of the allegation, the degree of urgency and the vulnerability of those to be protected. I hope that on the basis of those reassurances the hon. Lady will feel able to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister. There is always a problem when dealing with legislation whose detail is to come after, and when there are relatively few opportunities for parliamentarians to change the fine detail of the final product. I am happy to withdraw the amendment at this stage but I will reflect further and look closely at the Minister’s words to check that all my concerns have been allayed. I am not convinced that they have been and it is possible that we may wish to return to the point on Third Reading.

I beg to ask leave to withdraw the amendment.

Clause 114

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 56, in clause 114, page 62, line 18, leave out subsection (4).

This is a probing amendment to ascertain the Government’s plans under subsection (4) for the regulation of social care workers who are not currently social care workers. The simple question is, what groups does the Minister have in mind? The Minister confirmed during the debate on clause 5 that it is not the Government’s intention

“that the domestic or private arrangements that they outlined should fall under the requirement for regulation”.——[Official Report, Health and Social Care Public Bill Committee, 15 January 2008; c. 226.]

Regulations under this provision are made by statutory instrument under the affirmative procedure, in recognition of the fact that in granting the Secretary of State the power to repeal or amend any provision other than section 55 of the Care Standards Act 2000, this is a Henry VIII clause—our old friend whom we discussed earlier. I shall refrain from reading out the remarkably humorous contribution I made at the time.

Our memorandum of information notes:

“It has hitherto not proved possible to make amendments as promptly as would be desirable in that changes require an appropriate legislative vehicle and sufficient Parliamentary time.”

I felt quite irritated and irked by that. It is not a strong argument. For a Government it is a very weak argument, because not only is control of both elements wholly within their power, there has not been one parliamentary year since Labour came to office when an Act meddling with the NHS or social care sector has not gone through the House, any number of which might have contained the proposed provision. Committee members need only look at part 5 of the Bill for examples.

It remains a moot question, therefore, whether the Committee should vote away even more of Parliament’s democratic role solely because either the Government are not on top of their policy making in advance of their proposed legislative programme or they have some problem with their parliamentary timetabling, such that we need this extraordinary catch-all definition of social care workers who are not currently social care workers. I look forward to the Minister’s response.

Angela Browning (Conservative, Tiverton and Honiton)

I support the amendment. It brings us back to something about which the Minister has given us verbal reassurance throughout the course of the Bill, but subsection (4)(c) seems to catch all the people we have talked about. I am particularly concerned about the flexibility, which I have already said I support, of direct payments. Many people are employed directly by people who need a package of social care paid for through direct payments from public funds. We have just started to get a breakthrough in that flexible arrangement for people who are befrienders, such as those helping people with mental health problems or with autistic spectrum disorders, who need a package of care that is not the sort we have historically identified with physical disability or old age, but which makes a huge difference to their lives whereby their needs are recognised and they can at last start to take their place in society and do the sort of normal things that the rest of us enjoy but from which they are precluded.

Let us take as an example people who need a care package so that an age-appropriate or gender-appropriate person can accompany them socially—perhaps to go to the pub with them once a week. That may sound rather minuscule and trivial, but it makes a difference and I cannot see how such befrienders and people officially employed with public money will not fall foul of subsection (4)(c). They are just the sort of people who will be caught by that catch-all. Once they are subject to a lot of regulation they will be discouraged from doing those jobs and making themselves available one or two evenings a week. This is important, so I must ask the Minister to address what is on the face of the Bill, as it seems to fly in the face of some of his earlier reassurances.

Ben Bradshaw (Labour, Exeter)

The clause will only enable regulation of activities carried on by people who are not social care workers within section 55 of the Care Standards Act 2000 if the activities are carried on in connection with the activities of social care workers. Provision in subsection (4)(b) and (c) measures the equivalent provision that we have already discussed under schedule 3 in relation to the Health Act 1999, which sets out what regulation in relation to a health care professional may include.

In answer to the hon. Member’s question, it may include other groups who will need the flexibility to register in future. We have already announced that the first new group to be registered will be staff working in domiciliary care. The Government have also accepted GSCC advice on further groups, which include residential care workers. Those two groups cover staff in Commission for Social Care Inspection registered children’s care homes, residential family centres, care homes for older people, care homes for adults, domiciliary care agencies that provide personal care in people’s homes, fostering agencies, voluntary adoption agencies and so on. They are not the sort of individual contractual arrangements we discussed earlier and which the hon. Lady has just raised again.

That is why we are seeking the flexibility that the clause would give us. The difficulty we have with the hon. Member for Eddisbury’s amendment—notwithstanding his concerns, which I share, that we would not want the flexibility to be limitless—is that it would create uncertainty for the groups I have just referred to and may mean that those people or activities would not be brought within the regulatory framework or their regulation modified without primary legislation. I do not think that would be a sensible restriction so I hope he will feel able to withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

I have listened carefully. Although it has unquestionably been helpful for the Minister to say that he has in mind, for instance, staff working in domiciliary care, residential care workers and a number of others, it is either appropriate to define them, which would be possible, or, given that so much is in regulations, it could be done by regulation. What I do not like is that the provision is so general and unspecific that it could possibly capture more.

This is not a vote against the Government as a matter of principle but a vote against on the basis that we have made a sensible point that has not yet been fully addressed. I encourage the Minister to think afresh with his officials as they look at the next stages of the Bill. On a feet-to-the-fire basis, I seek to divide the Committee.

Clause 116

Stephen O'Brien (Conservative, Eddisbury)

I will be extraordinarily brief as this is my final flourish on part 2 as we romp through it and into part 3. The clause is about the education and training of approved mental health professionals. I shall do no more than say that the emphasis that we put on training is equal to that on all other aspects of the Bill. I think that that reinforces the Minister’s approach. We have not lost sight of the fact that the Bill is intended to be not just regulatory, but positive in giving support to those concerned.

Clause 119

Anne Milton (Conservative, Guildford)

I beg to move amendment No. 247, in clause 119, page 68, line 31, at end insert—

‘(8) All orders made in accordance with subsection (1) above shall be reported to Parliament.’.

Although it feels late in the day, may I say what a pleasure it is to serve on this Committee under your chairmanship, Mr. Conway? I have not had the opportunity to say that before.

I am hoping that we will have the opportunity to have a stand part debate. There has been a bit of a leap in subject matter. Part 3 of the Bill will update the Public Health (Control of Diseases) Act 1984 and has been widely welcomed. This part has not had a huge amount of publicity, but concerns have been raised about some of the powers that it gives. However, I re-emphasise that it has been largely welcomed.

Public health measures have been used since ancient times. The Chinese had a technique that was very similar to vaccination to prevent the spread of smallpox. Many of us are familiar with the public health measures in Roman times. It is as well that from time to time Governments update public health laws.

The amendment is essentially very simple. It reflects concerns that have been raised, not least by the National AIDS Trust, the Terrence Higgins Trust and a couple of other bodies. They are not against the powers and feel that it is important that they are substantial, but it could be said that the powers are draconian, albeit necessary, unfortunately. The National AIDS Trust was disappointed that those who had submitted views to the consultation process were told of the Government’s conclusions and the consequential legislative provisions only the day after the Bill was presented to Parliament.

There is some concern about the extension of the powers. In particular, a justice of the peace could previously make an order for a medical examination and move someone with a notifiable disease to a hospital or detention hospital. Under the Bill, a justice of the peace will additionally be able to order quarantine, disinfection or decontamination, and the wearing of protective clothing, and to require an individual to provide information and answer questions, require the monitoring of an individual’s health, require an individual to attend training or advice sessions on risk reduction, restrict where an individual goes or with whom they have contact, and require that they abstain from working or training.

I am sure the Minister would agree that while all those powers might be necessary, they are draconian. Many of the organisations that I mentioned, especially the Terrence Higgins Trust, have welcomed the Government response to the consultation. It is clear that the Government have been measured. The amendment would simply ensure that there was a safeguard in Parliament by giving Parliament an opportunity to look at orders that are made. A great deal of publicity has been given to the detention of people in recent years, albeit in relation to matters other than public health. Our society will be significantly interested in monitoring the situation.

Greg Mulholland (Liberal Democrat, Leeds North West)

We think that this is a sensible amendment, but is it really supposed to introduce subsection (8)? There is no mention of deletion, so should it not refer to subsection (9), or possibly (8A)? The key point is clearly that when there is a risk of significant harm to human health, it should be reported to Parliament. We broadly support the aim of the proposal.

Ben Bradshaw (Labour, Exeter)

I completely accept that the restrictions or requirements that justices of the peace can place on individuals could impact on their human rights, so it is very important that we are debating this and I am grateful to the hon. Member for Guildford for raising the issue. We agree that the powers must be used responsibly, which is why we have put them in the hands of an independent JP and included the requirement for the Secretary of State to make regulations about the evidence that should be presented to the JP before he or she makes a decision.

However, the amendment would require all orders made under new section 45G of the 1984 Act to be reported to Parliament and we think that that would be a little excessive. For example, we do not require social workers to report to Parliament each time they detain a person with a mental illness, or the police to report to Parliament each time they arrest a potential criminal. We are very well aware of the concerns of the organisations that the hon. Lady mentioned, including the National AIDS Trust, and my officials have been working very closely with them in developing the JP order regulations, which we will debate at a later stage. Given that, and the existing safeguards in legislation, we do not think there is a need for Parliament to be informed of every use of the provision, so I ask her to withdraw her amendment.

Anne Milton (Conservative, Guildford)

I thank the Minister for his response. I can see from his face that he genuinely shares our concerns about this. None the less, it would be a pity if these figures were available to Members only if they tabled parliamentary questions. Perhaps the Minister would consider putting those figures in the Library or making them available to the Select Committee. I beg to ask leave to withdraw the amendment.

Greg Mulholland (Liberal Democrat, Leeds North West)

I beg to move amendment No. 138, in clause 119, page 68, line 33, leave out ‘justice of the peace’ and insert ‘local authority’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 139, in clause 119, page 68, line 34, leave out ‘justice’ and insert ‘local authority’.

No. 140, in clause 119, page 69, line 1, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 141, in clause 119, page 69, line 2, leave out ‘justice’ and insert ‘local authority’.

No. 142, in clause 119, page 69, line 28, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 143, in clause 119, page 69, line 29, leave out ‘justice’ and insert ‘local authority’.

No. 144, in clause 119, page 69, line 38, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 145, in clause 119, page 69, line 39, leave out ‘justice’ and insert ‘local authority’.

No. 146, in clause 119, page 70, line 9, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 147, in clause 119, page 70, line 10, leave out ‘justice’ and insert ‘local authority’.

No. 148, in clause 119, page 70, line 43, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 149, in clause 119, page 70, line 44, leave out ‘justice’ and insert ‘local authority’.

Greg Mulholland (Liberal Democrat, Leeds North West)

Amendments Nos. 138 to 149—I do not understand why the group is listed as “138+139 to 149”, but I accept that there is a lot I need to learn about parliamentary procedure—are really about a point of principle, but, more importantly, they attempt to question the practical changes in this part of the Bill. The Minister will be well aware that there are serious concerns about the implication of those changes.

On the point of principle, we believe that the power to impose health control measures in relation to objects and premises to prevent the spread of infection or contamination, which we all agree is important, is better in the hands of local authorities than of justices of the peace. The amendments would make that change. The intention is to remove the requirement that the Bill would impose on local authorities to seek a legal ruling before taking measures in relation to things or premises to prevent the spread of infection or contamination.

As the Minister will know, we have not tabled amendments to proposed new section 45G, which addresses the power to order health measures in relation to persons. That is quite deliberate so that a higher standard of proof would be necessary in those cases before health measures could be ordered. We believe that councils, as the bodies in control of local areas and the only bodies that can put measures into practice quickly, need the power to protect the people whom they serve from contamination and infection.

The Minister will be well aware that the Local Government Association and individual councillors have broadly welcomed the changes to public health legislation. The LGA believes that they are

“mainly sensible and will consolidate existing legislation into a framework that will meet new and emerging challenges.”

Stephen O'Brien (Conservative, Eddisbury)

The hon. Gentleman might recall that during the oral evidence sessions, the Minister was not persuaded that there would be a requirement for repeated applications to a justice of the peace. I suggested—not that I got an answer, because it was more a rather loud aside—that one problem in the case that I had mentioned was that it involved a series of licensed premises. I wondered whether that might have made a difference to whether there would be separate or combined applications by the local council, notwithstanding the change in the role and responsibility of magistrates in relation to licensed premises. I wonder whether the Minister has had a chance to reflect on that and to establish whether there will be a problem of licensed premises giving rise to a serial need for applications, rather than a collective application.

Greg Mulholland (Liberal Democrat, Leeds North West)

I thank the hon. Gentleman for that helpful intervention, which has saved me from mentioning that part of the evidence sessions. As far as I am concerned, the question remains up in the air. I hope that the Minister has had a chance to reflect on it and that he will be able to respond.

As the Minister knows, the key issue is whether he challenges the view of local authorities that the provision will be an additional layer of bureaucracy and an extra step in the process that could lead to delays in the response to incidences of infection and contamination. That is clearly a valid concern. On top of the hon. Gentleman’s question to the Minister about repeated applications, I wish to ask him, first, why he believes the change will speed up the process and improve its effectiveness. If it will not, it would clearly be foolish to introduce it. Secondly, what are the costs involved? They cannot be nothing, and I would be surprised if they were negligible. Has a cost assessment of the changes been carried out, as well an assessment of their effectiveness?

Ben Bradshaw (Labour, Exeter)

As hon. Members will remember, the Local Government Association told us, during its evidence session, that requiring a local authority to seek an order from a justice of the peace in order to carry out measures in relation to infected or contaminated things or premises would cause a delay. However, that was wrong, because it suggests that the local authorities had those powers all along, and that the new safeguard provided by the justices of the peace would be a hindrance to an otherwise smoothly-running system. However, that is not the case. The Public Health (Control of Disease) Act 1984 does not extend to any premises or things that are contaminated, which is why we are taking these powers. The powers in relation to infected premises and things are patchy, which again is one of the reasons we need to amend the 1984 Act.

In many cases, local authorities have had to rely on other legislation, such as food safety, environmental protection or health and safety legislation, to deal with infected or contaminated premises and articles. Where there have been gaps, local authorities have had to rely on voluntary co-operation. The provisions in proposed new sections 45H and 45L will fill those gaps. However, we think that significant interference with, or even loss of a person’s home or property, deserves a degree of judicial oversight. Hon. Members will be interested to know that the responses to the consultation supported that view by 10:1.

The powers in new section 45 are to be used only when necessary. A justice of the peace is unlikely to reach a decision that an order is necessary, if the local authority has not already exhausted other reasonable methods. In addition, a JP is unlikely to deem an order necessary if it is sought as an alternative to using other more appropriate legislation, such as that on health and safety.

On the timing issue, hon. Members will remember that the LGA implied that the 1984 amendments would force local authorities, at great expense, to apply individually for 47 separate orders. That is not correct. New section 45J makes it clear that the local authority could seek a single group order for all premises relating to a single contamination incident. I remind hon. Members also of the evidence given by Pat Troop, from the Health Protection Agency, who was very relaxed about the speed of process involving a JP, in contrast to the speed of process involving local authorities.

In response to the point raised by the hon. Member for Leeds, North-West about powers relating to things and premises, rather than to people, we agree that direct interference in the rights and freedoms of people is of a different order and requires the oversight of a JP. However, interference with a private dwelling or other premises, or with the enjoyment or possession of private properties, is also quite serious and deserves such oversight. Given that, I hope that he will withdraw his amendment.

Greg Mulholland (Liberal Democrat, Leeds North West)

I am glad that the Minister agrees with me on one point; it might be the first time that he has in this Committee stage.

As I made clear, the LGA, local authorities and—I am sure—the Committee, agree that the tidying-up, to which the Minister alluded, is very important for the process. However, he has a little more work to do to convince, certainly, the LGA and local authority leaders that this is not an additional step in the process and that there is no possibility of delay. I urge him to engage in further dialogue to allay those concerns. I did not get an answer to the question about costs, and I ask him to bear them in mind and to respond at some stage with an idea of how much the changes will cost. That is an important point. However, we have teased out the main points, and I beg to ask leave to withdraw the amendment.

Ben Bradshaw (Labour, Exeter)

I beg to move Government amendment No. 242, in clause 119, page 76, leave out line 1 and insert—

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to have the opportunity to debate the amendment and beg the indulgence of the Committee. I am afraid that the only thing as a lawyer that I, apparently, excel at is international public law, especially the law of the sea. This amendment does not, as it happens, relate to my speciality, which is the configuration and operation of the law of the sea as applied to archipelagic states, which, as one can imagine, is both geographically and legally extraordinarily fraught when one considers states such as the Philippines or Indonesia.

Here I see, for the first time applied to the UKas a matter of law—although I hope the Minister will be able to prove me wrong and show how far behind I have become in my legal understanding of these areas—the question of territorial sea, as applied internationally and in recognised terms through the treaty, under the auspices of the United Nations law of the sea. Because of devolution, we have to look carefully at how the measure applies to England and Wales. The amendment says:

“the territorial sea adjacent to England and Wales.”

It certainly begs the question of such places as the Isle of Man, which sits between measurements relating to both Ireland as well as the Province of the United Kingdom, namely, Northern Ireland.

By one measurement, the Isle of Man is closer to the landfall of Scotland. One only has to think of the Mull of Kintyre to recognise that that poses a challenge, given that Scotland is not mentioned in the clause. I am not seeking to be picky, but I do think that this is a serious issue. Devolution often poses many questions where the whole of the law internationally has been framed upon the basis that the United Kingdom is a nation for the purposes of application of treaty law.

We domesticate that law and make it enforceable. If we then reflect on the devolutionary settlement that has taken place over the past decade, that poses a question. For example, the boundary between England and Scotland is in the Solway Firth. Is that a direct division and an equal length of measurement between the coast of north-west Cumbria and the south-eastern coast of Dumfriesshire? What does one do, for instance, with Lindisfarne, assuming that that is an English territory?

Although it is important to recognise that this can get bogged down in a geography lesson, and as is patently clear to all, I probably left out the most convenient example because I have reached the limit of my own geography off the top of my head, the amendment seems to beg questions about whether the measure has been imported without genuinely recognising the complexity of the international treaties that give rise to the law of the sea and therefore the definition of territorial waters. Interestingly, “territorial sea” as a term has not normally been recognised. Normally it is territorial waters that is applied to the British Isles, remembering that that includes the international state and neighbour of Ireland, across which we have our only land border. It also relates to the fact that we have a continental shelf measurement. That is different from the normal laws of the sea as would apply, say, to the Philippines, if one were measuring the territorial waters that extended to the normal 200-mile limit in an archipelagic state. Therefore, we have some serious issues to contend with here. I am sorry to take up the Committee’s time, but having seen the amendment, I could not resist ensuring that that matter has been thought through.

Anne Milton (Conservative, Guildford)

I rise simply because my hon. Friend’s contribution cannot pass without remark. It was absolutely remarkable and we are all glazed over in awe. I have read the amendment many times. I know that the public health issues in relation to ports are enormously complicated and, for the first time since the Committee’s proceedings started, I feel somewhat sorry for the Minister in having to respond.

Ben Bradshaw (Labour, Exeter)

Let me assure the Committee that I am not at all glazed over, but leapt to attention when I heard the hon. Gentleman’s comments, not least because, as a former fisheries Minister, I grappled with the complexities of devolution in relation to our coastal waters when dealing with the Marine Bill. I am well aware of the issues and hope to reassure him by saying that Scotland is working to develop its ship regulations so that they mirror the English provisions and Northern Ireland will develop its own regulations once it has a public health Bill.

The rest of the debate is in Hansard.