Health and Social Care Bill

[back to previous text]

Mr. Hammond: Does the hon. Gentleman mean lay members in the everyday sense or simply people who are not providing medical, ophthalmic, dental or pharmaceutical services? Given that the Lord Chancellor will appoint the body, it is possible that along with doctors, ophthalmologists, dentists and pharmacists, a smattering of lawyers could be involved.

Dr. Brand: If the Lord Chancellor is involved, they might all be lawyers. Under the definition that we are discussing, the members would be lay. I hope that the Minister will come back to that issue on Report because it would be unsatisfactory not to get a flavour of the tribunal and know, for example, whether it will represent patient groups or interests.

Mr. Denham: We shall certainly consider the amendment in drawing up those to table on Report. Because the measure is established under the legislation on tribunals, the Lord Chancellor—rather than us—will determine some of the key issues. We expect that a hearing, which is perhaps the critical part of the exercise, would typically consist of a panel of three members: a legal chair, a lay member and a medical member. As I understand it, the amendment is concerned with the size of membership from which such panels can be drawn. In drafting amendments on Report, we will want to consider the appropriate size for a workable body. Strong lay representation will certainly be required because there is a strong lay element in those panels that will undertake hearings.

Mr. Hammond: The Minister referred to legislation on tribunals under which the tribunal will be established. I wonder whether he could clarify that statement, because my understanding is that the tribunal will be established by this clause, not by reference to any other legislation on tribunals.

Mr. Denham: That is right. However, it will be supervised by the Council on Tribunals. The tribunal will be distinct from bodies—special health authorities, for example—in which the Secretary of State has an involvement, in that the Lord Chancellor will play a part in proceedings. If the hon. Gentleman wants legal chapter and verse, it might be necessary to come back to him on Report, but suffice it to say that the distinction to which I have referred is an important one.

Mr. Hammond: The Minister has told us that, in effect, the tribunal will be governed by procedures laid down by the Council on Tribunals. I am not familiar with that body, and nothing in the Bill suggests that the tribunal and its practices will be subject to regulation by such a body. How are we to understand the relationship between the FHSAA and the Council on Tribunals?

Mr. Denham: I probably need to come back to the hon. Gentleman in due course, so that I can ensure that I get the description and legal requirements absolutely right. However, I should point out that we want the authority to be reconstituted with members appointed by the Lord Chancellor, rather than the Secretary of State. That is one of the guarantees of independence that we are seeking to establish. The Lord Chancellor, in consultation with the Secretary of State, will also determine proposals for the constitution of the authority.

The hon. Gentleman asked further questions about the legal basis, and I have been advised just in the nick of time that the FHSAA will be a tribunal according to the terms of the Tribunals and Inquiries Act 1992. Under the provisions in this Bill, the Lord Chancellor will make the rules.

Mr. Hammond: I am not seeking to be difficult, but given that the FHSAA is not actually called a tribunal, and given that the clause does not state that the FHSAA shall be a tribunal according to the 1992 Act, how will statutory effect be given to its status as a tribunal? If the Minister does not want to answer that question now, perhaps he might do so during the stand part debate.

Mr. Denham: I am familiar with this important point, but given that my notes do not assist me in that regard, it would probably be more useful for me to write to the hon. Gentleman and other members of the Committee, setting out the relationship between the FHSAA and the 1992 Act.

Dr. Brand: I would value your guidance, Mr. Maxton, as to whether we will have a stand part debate.

The Chairman: There is no reason why we should not.

Dr. Brand: I am happy, therefore, to let the matter rest for the time being and return to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 pm

Mr. Denham: I beg to move amendment No. 113, in page 29, line 10, at end insert—

    `( ) In the National Health Service (Primary Care) Act 1997—

    (a) in section 22 (supplementary regulations about personal medical or dental services), in the section 28E to be inserted into the 1977 Act, in subsection (7)(e), for ``Tribunal constituted under section 46'' there shall be substituted ``Family Health Services Appeal Authority constituted under section 49N''; and

    (b) in Schedule 1 (preferential treatment on transferring to medical lists), in paragraph 9(a), for ``Tribunal constituted under section 46'' there shall be substituted ``Family Health Services Appeal Authority constituted under section 49N''.'.

The Chairman: With this it will be convenient to discuss Government amendments Nos. 114 and 115.

Mr. Denham: The amendment is a straightforward consequential change on the abolition of the NHS tribunal.

Under piloting arrangements, representations can be made to the NHS tribunal when a doctor holding a preferential right of return applies to rejoin the health authority's medical list from personal medical services. That right of return can be overruled if the tribunal considers that the inclusion of the doctor's name would be prejudicial to the efficiency of general medical services provided in the area. The provision allows any serious problems that emerge during someone's performance of PMS to be taken into account at the stage of re-entering the GMS medical list. The Primary Care Act 1997 makes provision for conferring on the tribunal specific powers of disqualification—for example, to overrule a doctor's preferential right to return under a permanent PMS regime.

Clause 19 abolishes the NHS tribunal and clause 28 reconstitutes the FHSAA as its replacement. The amendments simply reassign the powers to the new body as successor to the tribunal and thus maintain comparability with the present arrangements and provisions.

Amendment agreed to.

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

Mr. Hammond: I should like to ask the Minister a few questions.

Although the explanatory notes make great play of the FHSAA being reconstituted as an independent body, not a special health authority, independence is a relative term, and that interpretation depends on the belief that the Lord Chancellor is a more independent person than the Secretary of State for Health. Once members of the body have been appointed by the Lord Chancellor, they will be paid by the Secretary of State as he thinks fit. Such a situation is always dangerous—as we all know, it is difficult to be genuinely independent from the person who determines how much you are to be paid, if at all. It is fair to say that the FHSAA will be only relatively independent.

How will the existing FHSAA, which was presumably established as a special health authority by a statutory instrument, be wound up? The clause creates the new FHSAA as an independent body, but does not provide for the winding up of the existing FHSAA.

I am pleased and relieved to see that the rules governing the procedures of the FHSAA provide that appeals will be conducted through hearings, not merely written representations. That takes me back to a debate on the Care Standards Act 2000, in which we argued that when a person's livelihood is threatened, they should have the right of access to a hearing, not be limited to making representations in writing. I have to say that our argument was not accepted, but I am glad that the provision is in the Bill.

The Minister said, in response to an intervention by the hon. Member for Isle of Wight, that the FHSAA is essentially a pool from which panels for hearings are drawn, as is normal in such circumstances. Will it be based in London and sit in London, or will regional panels sit around the country?

I turn to a question that I have meant to ask the Minister on several occasions during our proceedings—indeed, I have stood up in order to do so, then forgotten what I intended to ask. In order for the Committee to conceptualise the volume of business with which the FHSAA is likely to deal, will he give us a flavour of the anticipated number of refusals? In other words, in how many cases is there likely to be at least the possibility of an appeal to the FHSAA? If there will be only a couple of dozen cases a year, sitting in London as a single panel would be acceptable, but if there will be dozens or hundreds arising in each health authority district, a regional panel arrangement would be more efficient and economic.

Perhaps the Minister can also shed some light on the peculiar terminology in paragraph 4(b) of proposed new schedule 9A to the 1977 Act, which states that the president

    may be removed from office by the Lord Chancellor on grounds of incapacity or misbehaviour.

We see all sorts of words in legislation, but ``misbehaviour'' is not one that I am familiar with in the context of health legislation. I wonder what ``misbehaviour'' entails? It conjures up images of the schoolroom. Will he explain why that particular word has been used and what sort of behaviour it is intended to encompass?

During the stand part debate, will the Minister throw a little more light on the overall size of the body? In response to the previous debate, he referred to the FHSAA as a pool. That was intended to reassure the hon. Member for Isle of Wight about lay representation, but it could have the opposite effect. If it were to have 50 members, then the fact that only one medical practitioner provides general medical services will give rise to the opposite concern. I accept that the Minister will not want to be specific, but will he give us an idea of the scale that he has in mind?

Finally, could the Minister satisfy my curiosity about the apparent over-representation in the present constitution of the authority of ophthalmology? What is the distinction between medical practitioners providing general ophthalmic surgeons and ophthalmic opticians providing general ophthalmic surgeons? I had not appreciated that substantial numbers of both provide general ophthalmic services. It means that there are two optical people, one dentist, one medic and one pharmaceutical person in the proposed constitution of the authority. For my enhanced knowledge and future benefit, will he explain how that works?

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 25 January 2001