House of Commons Hansard Debates for 7 May 1993

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education committee and the general council was sufficient to demonstrate that when the qualification was eventually awarded, it would reach a standard of proficiency required by the general council for the safe and competent practice of osteopathy.

That was an important amendment to make, because before it was incorporated into the Bill only qualifications presented to the general council could be considered for recognition. In the case of a new course, there would have been no qualification until the first cohort of students had graduated. However, unless there were the certainty that the qualification would be recognised, it is doubtful whether anyone would enrol for the course.

Granting recognition to an as yet non-existent qualification on the basis that when it eventually came to be awarded there was likely to be evidence of it having reached the desired standard could be regarded by some as akin to signing a blank cheque. Although the general council would be able to initiate action to withdraw recognition once the qualification was awarded, that would be an extreme step taken too late to help students. The abvers to encourage the institution concerned to take remedial action if things go awry. However, it will not be only in the case of new qualifications that the general council will be likely to want to impose conditions. Indeed, there may be general standards that the general council will wish to apply to the continued recognition of all recognised qualifications. These might include the ability of the education committee to appoint external examiners, to participate in the final clinical examinations or to require an institution to provide the education committee with, say, an annual report.

The ability to impose conditions will provide the education committee with very powerful levers to ensure that high standards of education are achieved and maintained. Failure to comply would be sufficient for the education committee and the general council to begin taking steps to withdraw recognition from the qualification. Clause 15 requires that any conditions are to be imposed at the time that a qualification is granted recognition and for the institution concerned to be notified of their imposition as soon as possible. This, therefore, makes them part and parcel of the recognition process. Given that clause 14 provides for the recognition of a qualification to require the approval of the Privy Council, it would seem appropriate that any conditions imposed under clause 15 should similarly be subject to the Privy Council's approval. That is what the amendment will achieve. It will also place the general council's power under subsection (5) to remove conditions under the same regime.

Mr. Quentin Davies : The recognition of qualifications is crucial to the credibility of the register and, therefore, of the osteopathic profession. My hon. Friend mentioned a number of issues that arise in this context, including the prospective recognition of such qualifications which it

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seems to be necessary to accommodate, for the reasons that he mentioned. However, may I ask my hon. Friend to explain the international context of the amendment.

Under freedom of establishment, would osteopaths from the continent be able to establish themselves here? Is it envisaged that the education committee would recognise continental qualifications and thereby allow those who have graduated in osteopathy in continental centres of education and who call themselves osteopaths to be part of the register in this country, whether they practise here or on the continent, and to use their presence on the register and the recognition of their qualifications by the general council as the basis for the professional credibility as osteopaths elsewhere in the European Community? This is an important dimension to the issue of recognition of qualifications which is not dealt with specifically on the face of the Bill or in my hon. Friend's amendments to the clause. It ought to be dealt with before the House allows the Bill to proceed.

Mr. Sackville : The Government support the amendment. The use of a recognised qualification as providing the principal means whereby practitioners are entitled to be registered is a key feature of all other health care statutory schemes. Just as entry on to the register will be the prize sought by practitioners, obtaining recognition of their qualification will be the accolade sought by education institutions. It will be a key factor in determining the reputation of the institution. It will be the principal means by which it will be able to attract students and help to ensure its future viability. Simply put, it will make or break an institution. It is therefore vital that the institutions concerned can be assured of the fairness by which the system of recognition will operate.

When my hon. Friend described the process at Second Reading, he emphasised that the requirement on the general council to secure the approval of the Privy Council before a qualification is afforded recognition would ensure that all such decisions would be impartial, but the provisions for fair play in the Bill go beyond that. Under clause 14, the general council would be required to maintain and publish a list of the recognised qualifications. That will provide an open system and will enable one institution to compare its standards with another.

Clause 14 also provides for the general council to require the education committee to publish a statement on the criteria that it will use when advising the general council on whether a qualification should be recognised. That will provide education institutions with a level playing field and ensure that they are fully aware of the standards for which they must aim.

Clause 15 would place the general council under an obligation to notify an institution of the outcome of its application to have its qualification recognised as quickly as possible. It would also require the general council to give full reasons for its decision, in cases where it decided not to grant recognition.

These assurances could, however, be weakened if the general council's ability to impose conditions on the continued recognition of a qualification remained unchecked. Institutions may be alarmed at the admittedly extreme prospect of having burdensome conditions imposed, or of their being perversely applied in cases where the general council did not want to grant

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recognition but could find no reason for not doing so, in order to use them as the means by which to seek to withdraw recognition on the ground of failure to comply.

The amendment would remove any such anxieties. Collectively, the provisions for recognising qualifications will give the firm foundation on which the osteopath scheme will be built and will provide the necessary building blocks to ensure that, in future, osteopaths are fully trained and properly qualified to practise osteopathy. For all those reasons, the Government support the amendment.

11.15 am

Lady Olga Maitland : I support the amendment. It is vital that the general council should ensure the highest standards of training. It is important to ensure that a battleground does not develop between the general council and the institutions. I hope that the institutions will develop training programmes of such quality that by the time their students graduate, they will have achieved the rigorous standards demanded by the general council.

Mr. Moss : My hon. Friend the Member for Stamford and Spalding (Mr. Davies) asked about European Community regulations and laws. If he refers to page 12, he will see that subsections (10) and (11) of clause 14 deal with that matter.

Amendment agreed to.

Clause 22

Consideration of allegations by the Professional Conduct Committee

Mr. Moss : I beg to move amendment No. 59, in page 17, line 24, after section', insert

or by virtue of a recommendation under section 30(7)(c)'.

Mr. Deputy Speaker : With this, it will be convenient to consider the following amendments : No. 60, in page 17, line 39, after section', insert

or by virtue of a recommendation under section 30(7)(c)'. No. 61, in page 18, line 42, after section', insert

or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c).'

No. 62, in clause 23, page 19, line 2, after section', insert or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

No. 63, in clause 23 page 19, line 12, after section', insert or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

Mr. Moss : Clauses 22 and 23 empower the professional conduct committee and the health committee to make a conditions of practise order, or a suspension order in cases where they consider that an allegation made against an osteopath to be well founded. They also enable each committee to review an order while it is still current and to consider whether it should be renewed or, within certain limits, replaced by a different order, or otherwise modified or even revoked.

The wording of each clause, however, is tightly drafted. In each case, it limits the committee's powers of review to orders, in the case of the professional conduct committee,

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made under clause 22 and, in the case of the health committee, to those made under clause 23. Under normal circumstances, that is unlikely to create any difficulty. However, in cases where an appeal had been made--for example, to the appeal tribunal against a decision of the health committee--the order in force would not, strictly speaking, be one made under clause 23 but under what is currently new clause 3. The same point would also apply to orders made on appeal to Her Majesty in Council under clause 30.

The question has been raised, therefore, whether the professional conduct committee and the health committee would have the power to review orders made on appeal under the provisions of another clause as to the way that they could review those that they had made. They ought to have that power. It was always our intention that they should have that power.

The amendments, therefore, remove any uncertainty about the position by including a reference to those orders made on appeal under the provisions of other specific clauses.

Mr. Quentin Davies : Will my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) consider carefully a point that is not covered by the amendments? I have referred to equity for those who are accused of an offence. They may be accused of having obtained their registration improperly or fraudulently, they may be accused of having subsequently committed a criminal offence or they may be accused of having subsequently been guilty of professional misconduct. The procedures set out in clause 22, in clause 10 and in clause 21 would then begin, depending on which particular committee was handling the case.

My hon. Friend has told the House that the Bill does not provide for compensation if a practitioner is suspended and it is then found that there is no ground for his suspension. There may have been no merit in the complaint, but the practitioner may have lost considerably in the meantime. It is unsatisfactory that there should be no time frame within which the procedures set out in clause 22 must be completed. It would be possible for the registrar under clause 10 and for the professional conduct committee under clause 22 to take any amount of time to consider such matters.

The process could go on for weeks, for months or for years. Even if the practitioner against whom the procedure was initiated were wholly guiltless, he might have been deprived of the right to practise his profession in the interim, possibly for years, and he might never be able to resume his profession although it had been found that there was no substance in the original complaints against him.

My hon. Friend the Member for Cambridgeshire, North-East has said several times that he intends that the quasi-judicial disciplinary procedures in the Bill should observe the principles of natural justice. I know that my hon. Friend is sincere in that intention and that there are many reflections of that principle in the Bill. Will he reflect on the point that there is an important dimension of which the Bill does not take account? If the amendment is agreed to, the Bill, for the best possible motives and in the highest-minded fashion, will have laid the basis for some appalling miscarriages of justice, not because the procedures will not be observed and not because the

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people who are involved in the committees intend that there should be any injustice, but simply because investigations will drag on. The main priority of practising osteopaths will not be to spend time on the professional conduct committee. There will always be the temptation to suspend investigations because of Christmas or Easter. The procedure will drag on and a wholly innocent osteopath who has had an appalling cloud over him for a long time--he may have been suspended by the registrar under clause 10 and he will not have been able to practise in the interim--will lose a lot of money. There will be no redress for the consequential loss of income.

The osteopath will find that he cannot refer to the Bill and say, "Look, the procedures laid down have a time scale attached to them, so I insist that justice is done and that the matter is brought to a conclusion one way or another within that time scale." The absence of a time scale is in conflict with my hon. Friend's laudable intention that justice should be done and that those who are subsequently proved to be completely blameless and against whom unjustified complaints have been made are not damaged.

Sir Nicholas Bonsor : I entirely agree with my hon. Friend the Member for Stamford and Spalding (Mr. Davies). I served on the investigations committee of the Lloyd's council for two or three years and I am well aware how long investigations can drag on despite the best intentions of all involved to make them as speedy as possible. In addition to the difficulties mentioned by my hon. Friend, there is the substantial difficulty of obtaining evidence from all the witnesses who may wish to give evidence, of finding out who they are and of ensuring that they have an opportunity to present their case to the investigations committee. These things tend to take a great deal of time and unless substantial incentives or penalties are attached--I share my hon. Friend's concern--people could be grossly out of pocket and badly treated by an investigation into a complaint that ultimately proved groundless or ultimately proved to have been started maliciously by someone who had some reason to wish the practitioner concerned ill.

Mr. Quentin Davies : I am grateful for my hon. Friend's support. Does he agree that there is an inter-relationship between compensation for loss of revenue as a result of a complaint that is subsequently deemed to have been quite unjustified and uncalled for--because the practitioner had committed no offence and because there was no impropriety in the way in which he was registered--and the time scale, to which we attach great importance? If there was provision for compensation, the osteopath who was suspended would find that his claim for compensation would increase with the time taken by the investigation because he would lose more patients and more revenue. The bill would clock up. Would that not act as a major inducement for those carrying out the investigation on behalf of the general council, whether the registrar and his staff or the members serving on the professional conduct committee, to get on with the investigation and to ensure that there were no unreasonable delays in the investigations and the conclusions?

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Sir Nicholas Bonsor : I am grateful to my hon. Friend for expanding on the theme. He is absolutely right to say that a provision should be inserted to safeguard the interests of the osteopaths.

Lady Olga Maitland : Could my hon. Friend draw a parallel with any other professional body and with how it deals with the problem? The General Medical Council might be one such example.

Sir Nicholas Bonsor : I am afraid that my hon. Friend has asked the wrong person. That question could be addressed to my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) or to the Minister. I cannot draw a parallel with the General Medical Council because I am not sure how it deals with this problem.

Ms Primarolo : Exactly.

Sir Nicholas Bonsor : The hon. Lady says, "Exactly". None the less, the point remains a matter of concern. My hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) has asked a valuable question and I hope that we shall be given an answer by someone who is able to do so.

My detailed concern relates to the consequence of agreeing to the amendment. Under clause 30, which deals with appeals against the decisions of the professional conduct committee or of the health committee, the way in which the Judicial Committee of the Privy Council will deal with appeals is set out in subsection (7). It says,

"Without prejudice to the application of that Act, on an appeal under this section to Her Majesty in Council, the Judicial Committee may in their report recommend to Her Majesty in Council--

(a) that the appeal be dismissed ;

(b) that the appeal be allowed and the decision questioned by the appeal quashed ;

this is the point with which we are concerned--

"that such other decision as the Professional Conduct Committee or (as the case may be) Health Committee could have made be substituted for the decision questioned by the appeal ; or

(d) that the case be remitted to the Committee concerned to be disposed of in accordance with the directions of the Judicial Committee."

Let us suppose that the Judicial Committee decided to adopt a course under subsection (7)(c) and that it substituted what it considered to be the appropriate response to the allegation against which the appeal was formed. The Judicial Committee of the Privy Council decides what is the appropriate penalty to impose or the appropriate step to take.

Once that stage has been reached under amendment No. 59, clause 22(6) will be affected. If unamended, that subsection will deal only with decisions made in the first instance by the professional conduct committee or the health committee. When those committees reach a conclusion,

"At any time while a conditions of practice order is in force under this section, the Committee may (whether or not of its own motion)--

(a) extend, or further extend, the period for which the order has effect ;

(b) revoke or vary any of the conditions ;

(d) reduce the period for which the order has effect ; or (e) revoke the order."

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It is clear that the amendment, if passed, will undermine the purpose of taking appeals to the committee of the Privy Council. If that committee then substitutes an order that, in its view, should have been made by the health committee or the professional conduct committee in the first place, it can override, reverse or otherwise interfere with the original decision.

11.30 am

The amendment cannot possibly have been intended so to undermine the value of the process of appealing to the committee of the Privy Council. I urge my hon. Friend to give careful consideration to the consequences of his proposal and to ensure that it is further amended to avoid those consequences. The matter is complicated and I do not expect an immediate response--which, in any case, would not be possible under the rules of the House. However, I urge my hon. Friend to ensure that the amendment is itself amended--although I appreciate the merit of what it attempts to achieve. Its drafting is clearly deficient.

Mr. Moss : I shall attempt to answer some of the points raised by my hon. Friends the Members for Upminster (Sir N. Bonsor) and for Stamford and Spalding (Mr. Davies).

The issue of compensation has been raised twice. Let me repeat what I said earlier : the Bill provides no grounds for compensation at any stage. However, in all other statutory regulation schemes affecting the health professions there is also no compensation clause. The insertion of such a clause in this Bill would be a first. My hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) asked about the General Medical Council. I suggest that my hon. Friend the Member for Stamford and Spalding consult his father, who will tell him that no compensation scheme is paid under the GMC's procedures. I would have expected my hon. Friend the Member for Stamford and Spalding to know that.

Mr. Quentin Davies rose --

Sir Nicholas Bonsor : Before my hon. Friend leaps to refute my scurrilous allegation of a shortage of knowledge to which I myself am happy to admit, let me explain that the crux of my hon. Friend's point--the part that I was endorsing--related not to a desire for a compensation clause, but to a desire for a mechanism limiting the time that could be taken.

Mr. Moss : I was coming to that. Clause 24(4) states :

"Before making an interim suspension order, the Committee shall give the osteopath in question an opportunity to appear before it and to argue his case against the making of the proposed order." Under subsection (5),

"At any such hearing the osteopath shall be entitled to be legally represented."

There is an appeal procedure, again with legal representation. Under clause 31(3),

"The order shall specify the period of the suspension, which shall not exceed two months beginning with the date on which the order is made."

Amendment agreed to.

Amendments made : No. 60, in page 17, line 39, after section', insert

or by virtue of a recommendation under section 30(7)(c)'. No. 61, in page 18, line 42, after section', insert

or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

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No. 62, in page 19, line 2, after section', insert

or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

No. 63, in page 19, line 12, after section', insert

or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.-- [Mr. Moss.]

Clause 26

Investigation of allegations : procedural rules

Mr. Moss : I beg to move amendment No. 17, in page 21, line 42, leave out paragraph (e) and insert--

(e) securing that--

(i) any hearing before the Professional Conduct Committee is held in public unless the Committee decides that it is in the interests of the person making the allegation, or of any person giving evidence or of any patient, to hold the hearing or any part of it in private ; and

(ii) any hearing before the Health Committee is held in private unless the Committee considers that it is appropriate to hold the hearing or any part of it in public ;'.

Mr. Moss : Amendment No. 17 is concerned with the hearings of the professional conduct and health committees. As currently drafted, the Bill provides for either committee to hold its hearings in public unless it considers it appropriate for a particular hearing to be held in private. In deciding whether to hold a hearing in private, the committees will be able to take into consideration the interests of the person making the allegation, or of any patient or other person giving evidence--or, in the case of the health committee, the interests of the osteopath concerned.

The amendment has two purposes. First, it builds in a degree of flexibility to enable either committee to hold part of the hearing--as distinct from all of it--in public or in private. Secondly, it changes the default position of the health committee's hearings by providing for them to be held in private unless the committee considers it appropriate to hold all or part of them in public.

The second feature is the more significant. Health committee hearings are likely to raise matters of a personal and sensitive nature. They could, for example, shine a spotlight on a medical problem which, until then, the osteopath had refused to recognise. It may also be necessary to discuss, or ask for evidence to be produced about, matters of a very personal nature. That could make the whole procedure rather traumatic.

It is important for the Bill to recognise that proceedings before the health committee would be completely different from those that take place before the professional conduct committee. The professional conduct committee hearings will focus on allegations of misconduct, incompetence and conviction of a criminal offence : they will be concerned with matters of professional discipline. That will not apply to health committee hearings. For the reasons that I mentioned earlier, there will be an imperative need for confidentiality ; without that, the procedures would risk failing to win the confidence of the profession. It could also mean that any encouragement that the GOC may try to give the profession in the future to refer cases of sick colleagues would be met by a wall of silence. Changing the default position of the health committees' hearings in this way would overcome those concerns, and would also bring

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the osteopaths scheme into line with the practice adopted by other statutory schemes for health professionals which make provision for a similar committee.

Mr. Quentin Davies : I have some problems with the amendment. The assumption behind it is that, whereas it may be a matter of public interest for a case to be heard by the professional conduct committee--in the sense that unprofessional or criminal conduct on the part of the practitioner may be alleged--the health of a practitioner is not a matter of public interest.

Is it not a matter of public interest that, for example, a practitioner may have AIDS? I cannot comment on the possibility of HIV being transmitted from practitioner to patient during a course of osteopathic treatment, but I shall be interested to hear what my hon. Friend has to say about that. As my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) knows, the question whether medical practitioners have an infectious disease has become a matter of intense public interest in recent months. That must be especially true in the case of a disease such as HIV, for which there is no cure and in respect of which the prognosis is always fatal.

No doubt my hon. Friend will respond with his usual courtesy and knowledge of the subject. I hope that, in doing so, he will not refer me again to the practice of the medical profession and the BMA general council and disciplinary committee--for several reasons. First, I do not pretend to hold a brief--and nor, I think, would my father wish to say that he held a particular brief--for the BMA.

Secondly, the BMA and the royal college have existed for many generations. There is therefore an established jurisprudence : we can see how in practice the BMA handles allegations of professional misconduct and so on. That means that concerns such as those expressed today about, for example, the time that investigations will take and about compensation do not necessarily arise with the same force. We have a whole record of historic experience of the BMA, whereas in the Bill, however, we are setting up a completely new and untested body. There will be some comfort to be taken from the fact that the body will be under the supervision of the Privy Council, but we do not know who the members of the council will be. Osteopaths have no record of supervising themselves and their profession. I am sure that they will make a great success of it, but if we are to set the new body on the right course, it is appropriate for such questions to be asked and that they should be convincingly and adequately answered.

Finally, doctors in particular would find it especially ironic were they told that osteopaths would never aspire to higher standards than the medical profession and that, where the medical profession has certain established procedures--for example, for disciplinary hearings--higher standards could not possibly be set in a new Bill to establish a new professional body for a new profession.

Lady Olga Maitland : In considering when evidence should be given in public and when in private, it is extremely important both to prevent a witch hunt and to keep the public interest very much in mind. There must be a careful delineation and a careful judgment about when each is appropriate. I imagine that a patient would find it

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well-nigh impossible to give evidence on very personal matters if he knew that the information would be in the public domain. That point of view must be respected if, without such evidence, the investigation could not continue.

Sir Nicholas Bonsor : I am puzzled about the logic and one of the consequences of the amendments. As I understand it, the original hearing will be in private if it is before the health committee, but the appeal will be in public. My hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) said earlier that he thought that there was a difference, in the sense that the original hearing was at the instigation of someone who was making a complaint whereas the appeal was at the instigation of the osteopath against whom the complaint was made. Presumably, we are supposed to think that that justifies the fact that the second hearing will be in public whereas the first has been in private. I do not follow the logic of that. It is true that it is the osteopath who brings the appeal, but he would not have to bring the appeal if he did not feel aggrieved by the judgment in the first hearing. I do not see why he should be forced, by the application of a different criterion, to bring all these matters out into the open, having been able to keep them within the privacy of the general council in the first instance. I take the points made by my hon. Friends the M right of privacy and, in circumstances in which it is held to be correct that he should be allowed to have a hearing in private in the first instance, there is a lack of justice in the matter being forced into the open on appeal.

11.45 am

Mr. Sackville : We are discussing the important question of fitness to practise. The King's Fund working party described the need to secure a high standard of professional conduct among registered practitioners as

"one of the primary functions of the Council of a self-regulating profession."

It went on :

"Although detailed arrangements for ensuring this vary slightly from one profession to another, the features common to most professions are : first, the promulgation of ethical notes for the guidance of practitioners or rules of professional conduct ; secondly, machinery for investigating allegations of unacceptable professional conduct ; and, thirdly, procedures governing the preferment of charges before, and the hearing of charges and the imposition of penalties by, a suitably constituted domestic tribunal."

Readers of the Bill will be aware that those are all important elements of the proposed statutory scheme.

My hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has already said that not all other similar statutory schemes make provision for a health committee. The King's Fund working party commented that the statutory provision of a health committee has been made in more recent times

"for the better protection of both practitioners and the public ... to deal with those practitioners who should not be allowed to practise for reasons of ill health."

The King's Fund working party went on to recommend the establishment of a health committee which would be

"responsible for hearing cases referred to it by the Investigating Committee where it seems to the latter that there is prima facie evidence of ill health sufficient to warrant suspending a practitioner's right to practise altogether or

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