Baroness Golding: I, too, support the amendment of the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay. The idea that any organisation should not be questioned is incredible, especially in a debate such as this. It is well known that paediatricians have had great difficulty with the General Medical Council. At a recent meeting of professional associations, 32 two members of the
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Royal College of Paediatrics and Child Health tabled a vote of no confidence against what the General Medical Council was doing with regard to paediatricians. Something is very wrong when professional people feel that they have no confidence in an important body such as that. I intend to speak later on a number of related issues, but I wanted to say how strongly I support the amendment of the noble Earl, Lord Howe.
Lord Walton of Detchant: This is Committee, so perhaps I may intervene again to say that that issue greatly concerns me, too, but it comes up later in the Bill, not here. The crucial issue here is that the amendments would overturn the principle of having one body that sets standards and another that has to look at the legal issue of whether those standards have been breached. It is for exactly that reason that I am not willing to support them. That principle, which was wrested from Janet Smith’s report and which defined the different responsibilities of the standard-setting body and the body that had to decide on sanctions, is exactly what would be breached if the amendments were approved.
Baroness Golding: I reply to the noble Lord by saying that some of these decisions are taken to the High Court. If they could be prevented from moving to the High Court and being overturned, that would be really good.
Baroness Thornton: I thank the Committee for a very interesting discussion. As Members have realised, Amendments Nos. 118 and 119 would require the guidance on possible sanctions to be published by the OHPA rather than the GMC, as is now the case. With the transfer of adjudication to the OHPA—I keep wanting to call it OPRA, I am sorry; I will get it right—it is important to safeguard the continuing consistency of sanctions decisions. There is a clear need for such guidance to continue to be published, and I am confident that it is right for the GMC to do that.
Let me explain why we want to go down that route, and perhaps offer some comfort to the noble Baroness, Lady Tonge. I do not think that I need to defend the noble Earl, but he said that he wanted to explore the issue.
To be on the medical register, practitioners will need to comply with the standards set by the GMC. The gold standard, as it was described by my noble friend, is Good Medical Practice. As that is the basis on which cases will be put to the OHPA, it is appropriate for the GMC to publish guidance on the interpretation of those standards and the sanctions that might be appropriate if a practitioner fell short of them.
As I said, Amendments Nos. 118 and 119 provide for the OHPA, not the GMC, to produce that guidance. The Medical Defence Union has argued for the change proposed by the amendment on the grounds that requiring the OHPA to follow the GMC’s guidance would interfere with the independence of the OHPA. The Committee is quite right to test and discuss that.
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I agree that panels must not be unduly influenced by the guidance published by the regulators on the appropriateness of sanctions. That is why the Bill says that the OHPA must take account of it. It does not say that the panel must follow the guidance if there is good reason to depart from it.
I take this opportunity to state on the record that the OHPA’s panels will be perfectly at liberty to make their own decisions. Clearly, a panel cannot operate in isolation from Good Medical Practice and the GMC’s sanctions guidance, which is derived from it, but it will not be bound to impose a specific sanction in an individual case if it does not think that, in the particular circumstances of that case, such a sanction is appropriate. It is also important that guidance is general rather than unduly prescriptive.
The noble Baroness, Lady Finlay, asked whether the GMC can question inappropriate guidance. Yes: if a decision is inappropriately harsh an individual has the right of appeal to the High Court. The right of appeal of the GMC is therefore to cover cases where the decision seemed appropriately lenient.
The noble Baroness also asked about compliance with human rights. We carefully considered the issue of compliance with Article 6 and the council’s decision obtained by the Medical Defence Union. We do not believe that the guidance will fetter the discretion of the OHPA, nor is it incompatible with Article 6 of the European Convention on Human Rights. The Committee may be aware that the GMC is currently revising its Indicative Sanctions Guidance, and has just completed a public consultation, which closed on 9 May.
6 pm
The draft guidance that the GMC has produced does not attempt to set out a tariff of the sanctions that the panels must apply in a particular kind of case, and I agree it is important that it does not do so. The draft guidance sets out a range of factors that may lead panels to conclude that it would be appropriate for the protection of the public to consider a particular sanction, such as the suspension of a doctor from practice. It makes clear that if the panel considers suspension to be the appropriate sanction, the length of that suspension is wholly within the discretion of the panel. It is entirely right that this sort of general guidance can be given by the body responsible for setting professional standards, and I do not believe that such guidance will compromise the independence of the adjudicator.
The OHPA will obviously have to ensure that the way the guidance should be taken into account is covered in the training it gives its panel members and that its panels are making decisions in a fair and consistent manner. This is a key task for the OHPA board, and it will be the board’s job also to monitor it. I hope that, having heard that explanation, the noble Earl will feel able to withdraw his amendments.
Earl Howe: This has been a good debate. I do not feel I need to apologise for having tabled the amendments. The debate has fulfilled its purposes because it has drawn out the underpinning logic and
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arguments for the policy as well as some of the countervailing arguments. I am grateful particularly to the Minister for her reply.
I say to the noble Lord, Lord Walton, that while he felt he had to come out in disagreement with me, I am not sure that he needed to do so. It is not necessary to disagree with a question, and a question is what I was asking. That question was neither unnecessary nor silly, and I am glad that the noble Baronesses, Lady Finlay, Lady Howarth and Lady Golding, felt able to come out in support of it.
The Government’s policy was originally to have a clear separation between fact-finding and fault-finding, precisely because of public perceptions, a point powerfully made by the noble Baroness, Lady Howarth. If we were honest, we would admit that part of the deal between the GMC and the Government was that if a separate adjudication body were to be created—namely, the OHPA—that body should have a duty to take account of the GMC’s guidance, otherwise I doubt whether the GMC would ever have agreed to a separate body.
I acknowledged in my earlier remarks that the deal that has been reached may well be a reasonable approach. Indeed, if the argument of the noble Lord, Lord Walton, were to be taken strictly, the OHPA would have been made to follow the guidance to the letter, but it will not be required to do so.
The debate has probably run its course. I shall read carefully what the Minister has said, and it may be that we shall not have to return to this matter at a later stage. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 119 not moved.]
Baroness Thornton: I propose that the Committee adjourn for 10 minutes until 6.13 pm.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was adjourned from 6.03 to 6.13 pm.]
Baroness Thornton moved Amendment No. 120:
Schedule 7, page 153, line 1, leave out “member State” and insert “relevant European State”
The noble Baroness said: In moving Amendment No. 120, I shall speak also to Amendments Nos. 121, 155, 156, 158 and 159. These are minor, technical and consequential amendments on professional regulation. They include minor drafting corrections and some consequential and clarifying amendments arising from the creation of the OHPA. If Members of the Committee wish, I can take them through each of these amendments in detail. I beg to move.
6.15 pm
Baroness Golding: If the person practising is an American, how is he or she covered by this provision, which covers European states? If an American doctor is over here who is affected by this provision, will he or she be sent back to America—or what will happen?
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Baroness Thornton: Amendment No. 120 is a drafting correction. The 2007 European qualifications regulations amended the heading of Section 44 of the Medical Act 1983. We are therefore changing the reference in the Bill to reflect that. It has no effect on the meaning of the provision and no effect on current practice.
Baroness Golding: Are Americans practising in this country governed by the GMC or are they referred back to America?
Baroness Thornton: I will need to check that and write to my noble friend as my notes do not cover that point.
Lord Walton of Detchant: There are clear mechanisms for registering overseas doctors from countries outside the European Union which I think are still solid and effective.
Baroness Thornton: That was what I was trying to say; thank the noble Lord very much.
Baroness Golding: Further to that, all 50 states in the United States have mandated reporting laws whereby physicians are required to report child abuse to authorities and are protected from liability if they report in good faith. We do not have that measure in this country. Perhaps we should consider having it. I hope that the Minister will comment on that.
Lord Walton of Detchant: It is important to clarify this. It is perfectly true that for some years any doctor with a British qualification practising overseas in, for example, the United States or Canada who was subject to disciplinary sanctions in that country did not have the proceedings reported formally to the GMC. However, after one or two very notable cases that arose in Canada, that situation was changed and such proceedings were reported formally to the GMC, so that it became aware that the doctors in question had been disciplined in another country. I am uncertain whether that still applies; things may have changed in the past few years. However, I think that is the position.
Baroness Golding: I am sorry to interrupt, but that is not my question. I am talking about double standards. There is one law for American doctors in America but if they come over here to practise will they be completely subject to the jurisdiction of the GMC? How will we deal with that situation?
Baroness Thornton: I thank the noble Lord, Lord Walton, for his helpful explanation. I will undertake to clarify this situation for my noble friend and circulate the letter to the Committee.
On Question, amendment agreed to.
Baroness Thornton moved Amendment No. 121:
Schedule 7, page 156, line 34, after “for” insert “the Registrar for him to refer it to”
On Question, amendment agreed to.
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Schedule 7, as amended, agreed to.
Clause 95 [Fitness to practise panels]:
Baroness Finlay of Llandaff moved Amendment No. 122:
Clause 95, page 47, line 8, leave out “a lay member” and insert “two lay members”
The noble Baroness said: This is a probing amendment, but it relates to the constitution of the panels that will determine the future of the relevant doctor. I have already said that doctors are fearful of the GMC, but it would be more accurate to say that they are terrified of it. Doctors know perfectly well that the panel before which they come under a fitness-to-practise hearing will determine the whole of their future life. Therefore, I am querying why the panel has only three members.
For some doctors, the fear of the fitness-to-practise panel has been so great that they have actually committed suicide before their hearing, not through guilt but through the burden of shame at ever having been reported to the GMC in the first place, even when that was vexatious reporting and they have known that that was the case, or even when they have known that a hate campaign has been run in the local newspaper against them and they have been unable to respond because of fear of breaching patient confidentiality, but they have known that their practice was not substandard and that they had nothing to feel guilty about.
No one should underestimate how devastating a complaint is to a conscientious doctor, let alone when it gets reported to the GMC. The problem with a panel of three is that it seems almost dangerously small. If you have a powerful personality among three people on a panel and one of the other people is not a very powerful personality, it becomes easy to see how that small panel could become biased in its thinking or perhaps overinterpret some items of evidence brought before it and underinterpret others. After all, however well trained the panel members are, they are only human. I am not questioning the validity of people who sit on panels for the GMC. I am questioning the principle of having a panel that consists of only two members. That is why the amendments suggested increasing the number of lay members to two and the number of professionally qualified members to two.
I note that under Clause 95(4), the rules can determine the fitness-to-practise panels, but I am concerned that nothing here says that the balance should be equally lay and professional. It would be just as dangerous to have a panel that was loaded with lay membership as it would be to have a panel loaded with professional membership. To have the latter would take one severely back in time.
This is a probing amendment that questions whether it is wise to have a panel of only three members rather than a minimum size of five and questions why we do not have a designated balance, accepting an independent chair as the fifth member of a panel. I have discussed this issue with the Medical Protection Society, and it has concerns about the small size of the panel.
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The amendment about one member who should have relevant professional expertise is also a probing amendment. It is not at all to undermine the role of the professional adviser to the panel; rather, it questions whether, where a small panel is forming a judgment and there is only one professional member on that panel, that person can necessarily interpret some of the complex contextual aspects of the doctor who is up before the panel.
You could say, “Can someone working in the pharmaceutical industry really interpret the full context of modern general practice or vice versa?”. There are some very high-tech and complex areas of clinical practice that are far removed from the low-tech areas. I shall give the Committee an example: contrast inter-uterine foetal surgery with psychogeriatrics. Some of the pressures, the decision-making, the context and the team that one works with are very different. When you look at medical errors and problems that arise, they often have compounding factors from a team rather than being the responsibility solely of the doctor who is up before the panel. It is for that contextual reason that I am asking that it should be someone who had relevant professional expertise.
I say emphatically that I am not requesting that one should ever consider that it is someone from the same discipline. Medicine is a small world, and it is easy to have bias. If people have heard about someone being reported to the GMC and so on, their thinking might be biased before they ever come on to a panel. However, I wonder whether one needs to ensure that there is some relevant background to understand the context of the doctor who is before the hearing. I beg to move.
Lord Walton of Detchant: I have considerable sympathy with the amendments tabled by my noble friend Lady Finlay on the membership of the panels. A panel of three is too small, and the idea of having two lay and two professionally qualified members is very sensible. At the very least, I hope that the Government give us a complete assurance that, when OHPA decides what number of members will sit on the panels, there will always be equality between the number of professional and lay members. That is not in the Bill, and it is a principle that is absolutely to be commended.
The panels used to have on them an individual from the same profession as the respondent doctor. When I chaired the Professional Conduct Committee of the General Medical Council, we always used to appoint to the panels hearing the case a doctor from the same discipline as the doctor whose fitness to practise was under consideration. I fully appreciate that many paediatricians, particularly those who have been engaged in child protection issues, have taken the view that certain recent decisions by the GMC’s Professional Conduct Committee on doctors working in that field have been perverse and might not have been taken if a specialist paediatrician working in child protection had been sitting on the panel. I believe that the GMC now accepts that view, but the problem with a specialist from the same field sitting on the panel is that the advice by the panel and the
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debate by the panel about the doctor’s fitness to practise are respectively given and held in camera and are not public.
One great virtue of the Bill is that it clearly defines in Clause 98 the role of the legal assessor, and clearly defines in Clause 99 the role of clinical and other specialist advisers. After Second Reading, I wrote to the noble Lord, Lord Darzi, and he wrote back, saying that he was quite confident that the specialist and clinical advisers would be chosen with the same status as the legal assessor, with the authority to have those clinical and specialist advisers from the same speciality as the respondent doctor. If the Minister can give me that assurance, it is very important that that should be accepted. Subject to that, I am happy to support the amendment, except for the one point.
Baroness Golding: I, too, strongly support the amendment. In a recent case that came before the GMC, the professionally qualified member could not attend at the last moment but the case still went ahead. That is very regrettable. If the amendment is accepted, that will be avoided.
Baroness Thornton: Amendments Nos. 122 to 125 propose changes to the composition of the fitness-to-practise panels of OHPA. Amendments Nos. 122, 123 and 125 would impose a panel of five members, no matter what the circumstances of the proceedings before it. Clause 95 provides for OHPA to have a panel of three members, a chair, a lay member and a professionally qualified member, with additional members appointed as necessary. This provides the flexibility for OHPA to form large panels in complex cases, while ensuring that a quorum of three members is all that is required to ensure that a decision can be reached. I suggest that to impose a fixed number of five panellists on OHPA would remove this flexibility and inflate the size and cost of panels needed to conduct adjudication procedures. In my view, the cost is not the issue—
6.30 pm
Baroness Tonge: I take the point that the panel should be flexible and can appoint more members, but if the minimum is to be three, that does not cover the possibility of someone not turning up or someone being ill at the last minute. In any case, to have three members of a panel deciding on the future of a doctor and whether they can pursue their livelihood for the rest of their lives is, frankly, an insult. The minimum should be five.
Baroness Thornton: The procedural rules in fact say that they should be able to find a substitute, or they may have to delay the panel. Let me continue my remarks about other organisations that fulfil similar sorts of duties and do so with panels of three. First, I will respond to the noble Baroness, Lady Finlay, who made the point about the personality of one panel member on a panel of three who may come to a decision unfairly. If that were the case, I suspect that there would be far more successful appeals against
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GMC panel decisions; as it is, there are actually very few. We would expect the OHPA to create equality and balance in its panels.
We do not think that, in this case, there is evidence that a panel of three is insufficient. I say to the noble Baroness, Lady Tonge, that the flexibility exists for there to be a larger panel if there is an important or complex case to be considered. It might well be that the cases that have been mentioned might be considered to be just such cases. A panel of three members is widely used by other bodies, such as the Solicitors Disciplinary Tribunal and many of the health professional regulators. In light of best practice in other adjudication bodies, I do not want to impose a larger panel on the OHPA, especially when it will have the discretion through its rules to vary the panel size according to need. Those rules will be subject to consultation under Clause 104, the approval of the Privy Council and parliamentary scrutiny via the negative resolution procedure.
Amendment No. 124 seeks to ensure that there is a professionally qualified member on the panel who has “relevant professional expertise”. We agree that it is important for the panel to have a professionally qualified member on it, and that is what the Bill provides for. The question is whether the amendment goes one step further by saying that the professionally qualified member must have “relevant professional expertise”. I was reassured by the noble Baroness, Lady Finlay, that she was not suggesting that the person should be of the same discipline, and other Members of the Grand Committee have mentioned that. While I understand that there may, on the face of it, seem to be benefits from having this kind of knowledge on the panel, there would also be a real risk of such a requirement either undermining the independence of the panel—if it was a very small discipline that might be the case—or of delaying the panel because of the difficulty of finding someone. It is a question of whether “relevant professional expertise” ties the OHPA down in a way that would not be helpful.
Baroness Golding: I strongly support the amendment, which is very important indeed. I speak again about paediatricians. I wrote in March to the president of the GMC, who offered to help me to understand the way that the GMC works. I asked for an explanation regarding the inquiry on the fitness to practise of Professor Southall in the Sally Clark case. Following his reply, I said:
“As I understand it Professor Tim David was the sole paediatric expert assisting the G.M.C. in both the prosecutions of Professor Southall. I also understand that Professor David was appointed by the Family Court to oversee the care of the remaining Clark child and supported Mr Clark’s position. He has also been retained to support the Clark family in their appeal against Mrs Clark’s criminal conviction. If this is correct how could Professor David act as an impartial paediatric expert in the prosecution of Professor Southall by the G.M.C.?”.
I received a reply which said that it would be inappropriate for him to comment on Professor Southall’s case at this stage, as he has appealed to the High Court. He did appeal to the High Court and his appeal was accepted.
That is one case where someone who was supposedly independent obviously was not. The General Medical Council also proposed to ask Dr Nicholson to act as the professional witness at the CMET trial of Professor Southall, Dr Spencer and Dr Samuel that was due to start this week. That was to happen even though Dr Nicholson had constantly made remarks criticising and attacking the research work at Stoke-on-Trent hospital, where the doctors worked.
I understand that the trial for those three doctors has been delayed because Dr Nicholson was replaced at the last moment. That makes me wonder why. Why should this kind of thing be happening, whereby doctors’ livelihoods are put at risk by people, who are obviously opposed to them, giving evidence as recognised witnesses to the three people sitting on the tribunal at the GMC? What kind of justice is that? We ask for justice for the patients. Where is the justice for the doctors?
Baroness Jones of Whitchurch: I want to make a quick comment, although I cannot comment on the case that has just been raised, because I do not know the details. I was a bit bemused by the amendment, because when we are talking about fitness-to-practise panel members referred to in the amendment—who are different from the specialist advisers who may give advice—there is a requirement for them to be independent. Indeed, we all have to pledge that before a case starts. That may need to be written in the document, but it is certainly the case at the moment. There may be a separate debate about professional clinical and legal advisers and the extent to which they have been involved in a previous role, but the panel members themselves are guaranteed to be independent. That is my understanding.
6.45 pm
Baroness Golding: That has not always been the case. People who have spoken out against what has happened have previously been panel members.
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Baroness Thornton: Amendment No. 126 seeks to ensure that fitness-to-practise panel members have not been involved in previous investigations or proceedings related to the professional before them. That is an important principle and one well established with the current regulators. On my noble friend Lady Golding’s detailed questions on the case she mentioned, it is subject to ongoing proceedings, so it would be inappropriate for me to comment.
The current GMC rules on the composition of panels specifically provide that no panellist shall act as a panellist for the substantive hearing of a case that he has previously considered or adjudicated on in any other capacity. That ensures that panel members who are involved in the investigation process are not called on to take part in the adjudication process, and that panel members who have heard a case against a practitioner do not hear any future cases against him or her.
As I said, that is absolutely right and I agree with the general spirit of the amendment tabled by the noble Baroness, Lady Finlay. However, I remind the Committee that the OHPA will adjudicate only on fitness-to-practise cases. It will take no part in the investigation process. There is also a specific problem with the amendment as drafted. It is currently recognised that review hearings following adjudication can benefit from the inclusion of an original panel member, and the GMC rules allow that as an exception to the general rule that I outlined.
Amendment No. 126 would prevent that, which would mean that it would not be possible to have any continuity between adjudication and any review hearing. Although that is a specific reason why I am unable to accept the amendment, I think that it also demonstrates more generally why it is important to give the OHPA the flexibility to set out the detail of its processes in rules, rather than in primary legislation. Clause 95(3) of the Bill allows for rules to make further provision about the selection of panels in relation to any proceedings. That will allow the OHPA to set out how panel members should be selected so that any conflicts of interest are avoided.
We are creating the OHPA within an enabling framework. We must be careful to resist the temptation to specify too much detail and make too many decisions for the organisation now. Given that we are setting up the OHPA in order to create a proper separation between investigation and adjudication, it is vital that its rules reflect the crucial principle of independence and separation. We must, however, allow the OHPA, as the experts, to decide exactly how to do this. There is a requirement for full consultation on its draft rules. I am completely confident that noble Lords who have participated here and the many organisations which have already played a part in the framing of this Bill will ensure that its rules are robust and fair. Parliamentary scrutiny via the negative resolution procedure will also provide a backstop. On that basis, I hope that the noble Baroness, Lady Finlay, is sufficiently reassured to withdraw her amendment.
Baroness Finlay of Llandaff: I am most reassured by the Minister’s words. I am especially grateful to the noble Baroness, Lady Golding, for her strong support
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and for having brought such specific examples to the attention of the Committee, because they are very important. I put on record that she has done great service to the probity of investigation of doctors by her investigative inquiries into the matters that she has brought before us.
As the noble Baroness, Lady Jones, said, I recognise that the fitness-to-practise panel members have to be independent at the moment; but it was so that we did not revert to the previous situation that I wanted to write that into the Bill. I hope that the Minister's words mean that it will be in the guidance to the panel that they must be independent.
Baroness Thornton: Actually, it will be in rules, not guidance.
Baroness Finlay of Llandaff: I am grateful for that, and that is more reassuring still. I have some slight concerns about putting a panel member forward from the investigative panel onto the adjudication panel, because I would prefer that the adjudication panel can call a panel member to give them evidence, to explain their thinking, to explain what went on and answer questions about the investigative hearing. I have a little concern that we fudge that clear separation by having a panel member go from one panel to the other, particularly given the small size of the panels.
Baroness Thornton: Perhaps I may clarify that point. I said that the specific issue about this was about the review of decisions, not going forward from one panel to another, but being able to participate in a review of a decision that a panel had taken.
Baroness Finlay of Llandaff: I am grateful to the noble Baroness for clarifying that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 127:
Clause 95, page 47, line 18, leave out “in specified circumstances”
The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 128. Both are probing amendments, and they bring us to an issue that has prompted a good deal of debate both inside and outside Parliament: whether the chair of a fitness to practise adjudication panel should on every occasion be legally qualified.
At the moment, the Bill specifies that the chair may be legally qualified and furthermore that rules may provide for pilot schemes under which legally qualified chairs are or are not selected for certain sorts of proceedings. I find it difficult to envisage how pilot schemes will work in practice. How, while ensuring fairness and consistency between cases, do you select which cases are going to be chaired by a lawyer and which are not? You could not do it by random selection, because that would open up the prospect of legal challenge. Will it be done by agreement between the parties? If so, one has to ask what doctor would agree
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to a hearing of their case being chaired by someone other than a lawyer if they believed that this was the best way to achieve a legally secure and fair outcome. I would be glad if the Minister could tell me how she envisages the pilots will be organised.
The more substantive issue is one of principle. There is a strong argument that says that what really matters in any adjudication process is the quality of the chairman; in other words, whether he or she has good chairing skills—not whether he or she has a legal qualification. Because the Bill is drafted as it is, I take it that that is the position of the Government, and I know it to be the position taken by the GMC. The contrary position is to say that only someone with a full understanding of the legal process is fit to chair the panel. Adjudication is a legal process; it is not a medical process. The skills and experience that are needed to conduct such proceedings are legal.
To take one issue of many, the introduction of the civil standard of proof brings with it apprehensions about fairness and consistency between cases and concerns about how the sliding scale is to work. Those apprehensions and concerns would be considerably allayed if it were known that a lawyer with experience of applying the civil standard had to be the chair of the adjudication panel.
In general, applying the law properly and consistently, summing up a case fairly and composing the final judgment thoroughly and clearly are all tasks that, prima facie, are better done by a lawyer. I believe that legal chairs are the norm with the Family Health Services Appeal Authority, which can make decisions that have consequences for a doctor’s future career that can be every bit as profound as a fitness to practise judgment.
If it really is the Government’s intention to allow the OHPA to decide which cases should have a legally qualified chair and which need not, it would be helpful to hear from the Minister what criteria should govern those sorts of decisions and why. I beg to move.
Baroness Tonge: I support in particular Amendment No. 128, regarding this rather clumsy Clause 95(4), which talks of,
“a chair who is legally qualified for the purposes of section 96(2)(a), and may provide for pilot schemes under which chairs who are legally qualified for those purposes are, or are not, selected for such proceedings as may be determined in accordance with the rules”.
I am still reading it, wondering if I have got it right. My difficulty with this is that we are talking about a legal process that is going to determine the future career of a medical practitioner, and we are saying that we are going to set up pilot schemes so that some doctors will be “tried” by one method, with a legal chair, and others with a lay chair.
If, after a certain time, the Government decide that the pilot for lay chairs is rubbish and has not worked and that we must ensure that all panels have a legal chair, will those medical practitioners who have been tried by a panel with a lay chair then be able to challenge the decision that that panel came to, on the grounds that the Government were not satisfied with
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the way that panel was set up because it had a lay chair, and that it was therefore not a valid panel any more? I am not a lawyer, but there is a crack in the pilot scheme idea that could cause an awful lot of trouble and confusion. It would be much better, if the Government are unsure about which is the best method, to say, “We will go for a legal chair and in 12 months we will review all the cases that have been done by the panel and see whether that was a worthwhile method and if there have been any problems”.
This is a probing amendment, as the noble Lord, Lord Howe, said—the noble Earl, Lord Howe, I am sorry. It is late, and the back is aching. I support the amendment.
Lord Walton of Detchant: I must say, I do not envy the Minister’s task in answering on these complex issues. On the one hand, there is a strong case to be made for having legally qualified chairs of these fitness-to-practise panels. On the other hand, if that is accepted, what is the role of the legal assessor who, under Clause 98, will be present at every hearing to advise the panel on matters of law? In my experience, the legal assessor played an invaluable role in being able to advise the panel on difficult points of law. It could be, of course, that the chair of the panel, if legally qualified, might be a barrister who took a completely different view from the legal assessor of the legal issues involved, or might be a solicitor who then felt rather overawed by the presence of a highly qualified legal assessor who was a Queen’s Counsel. It is very complex. Like the noble Baroness, Lady Tonge, I am concerned about the principle of having pilot studies and pilot schemes in this very difficult and complex area.
The GMC makes a number of points. Whether or not the perceived procedural advantage of legally qualified chairs sufficiently justifies the loss of the current separation between decision-making and the provision of legal advice, if we always have legal chairs, other panellists—lay members and doctors—may be perceived as second-class participants in the proceedings. Are we confident that the blurring of roles between a legally qualified chair on the one hand and the legal adviser on the other might end up with the legally qualified chairman offering advice and guidance in private to fellow panellists that should, in the interests of fairness, be repeated publicly? This is a very difficult and complex issue, and I do not see how it can be readily resolved. I feel very uncomfortable about the pilot studies.
7 pm
Baroness Finlay of Llandaff: I have an amendment in this group. The discussion already demonstrates that we almost have equipoise on some of these issues. My amendment would ensure that an independent legal adviser must be present. My concern is that if you have a legally qualified chair without a legal adviser, the chair could be put in the situation where he or she is also a legal adviser, in effect advising him or herself by wearing two hats. That does not push the debate towards an independent chair.
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