Health and Social Care Bill

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Dr. Brand: The clause is thin and inadequate, and it has become more confusing now that we have heard from the Minister that the authority is not to be set up under the Bill, but plugs into an existing set of regulations relating to tribunal services.

I shall echo the comments made by the hon. Member for Runnymede and Weybridge. We have medical practitioners providing general ophthalmic services because they are on a list. In fact, they are representative of local medical committees, which is a category that is entitled to join the list. However, in the modern world, someone providing services under a supplementary list should also be represented. I am unhappy that, despite the throwaway line from the Minister, this is only going to be a pool. What is the authority going to do? Will it make policy? Will it comment on the regulations, which he will promulgate, under which its judgments must be made? The Medical Practices Committee had quite an active role in some of the functions to be taken over, as does the body that will be abolished and reconstituted.

I would be happier if the Government decided not to include the clause, as we shall clearly have to return to it. I would have thought that primary legislation would have to specify that the appeals authority be governed by the tribunal regulations. There should be some flavour of the total numbers. Will only members of the authority be able to sit on panels convened by it? Will it have strategic powers, or will it merely service mini-appeal panels around the country? The Minister has left himself a big job in the way of revision, and it is sad that we will not be able to see the direction in which he is going on the appeal authority until the Bill is considered on Report.

Many of the issues that we have discussed at the past few sittings depend on a fair, open and accessible appeals authority. Judging from the Bill, the authority does not look very open, so it is difficult to assess whether it will be fair to either the practitioner or the community.

Mr. Denham: Let me attempt to address some of the issues. We have so far spoken to only a small amendment, so we should outline our proposals for the operation of the reconstituted FHSAA. I will start with our reasons for the proposed reconstitution.

We announced in July that we wanted an appeal right to the FHSAA for contractors who had been removed from health authority lists. As a special health authority with members appointed by the Secretary of State, we feared that the existing FHSAA would not be considered sufficiently independent to satisfy the requirements of the European convention on human rights. I do not believe that there has ever been evidence under this or previous Govts of Secretaries of State interfering with the FHSAA, but the legal protection that may now be required under the convention is not provided for.

In giving the body new status, we are taking existing provision further. The Bill makes it clear that we want to reconstitute the appeals authority, with members appointed by the Lord Chancellor. That is the first distinct difference from the present FHSAA, the members of which are appointed by the Secretary of State.

The new body will continue to hear the appeals delegated to it by the Secretary of State, which include disciplinary committee decisions if a GP is in breach of terms of service as a result of, say, failing to provide out-of-hours services. Also included would be appeals against decisions of health authorities on fees, and appeals relating to the provision of pharmaceutical services. Those are the existing functions of the FHSAA that will transfer to the reconstituted body.

The second function is in relation to determining appeals that arise from the clauses that we have debated today. Examples would include failure to admit a contractor or a provider of PMS or PDS, failure to remove a person from a health authority list, and the refusal of a health authority to review a contingent removal decision. An additional important function is the ability to determine that a practitioner who has been removed from one health authority list should be removed from all health authority lists or prevented from joining other health authorities. Practitioners will have a right of appeal against FHSAA decisions, but only to the High Court and only on a point of law. That is consistent with other appeal bodies that come under the supervision of the Council on Tribunals.

6.15 pm

I may previously have inadvertently misled the Committee. The Bill is the mechanism by which the body that we are considering will be established. The Council on Tribunals oversees the workings of tribunals; we intend that the appeals authority will be included. The Council on Tribunals issues an annual report on the work of the tribunals with which it is concerned.

Mr. Hammond: Will that be a statutory or an extra-statutory role?

Mr. Denham: I offered earlier to write to the hon. Gentleman to clarify the exact relationship. I do not want to mislead the Committee; a significant statement about the independence of the relevant body is involved.

Our amendments will set out proposals for the constitution of the appeals authority, including provisions for the appointment of members and the number of members needed to ensure fairness and efficiency. Those matters will be determined by the Lord Chancellor in consultation with the Secretary of State. The intention is that the authority should be headed by a legally qualified president and deputy presidents and that the panel of members should include representatives of the contractor professions, lay members and legal lay members. The exact number of lay members is a matter for discussion. It seems reasonable to expect a similar number to the number of professional members identified in the current draft. We shall want to return to that question. It is a fair point that with 100 lay members the body would look very different. A similar order of magnitude is a reasonable way to describe our current intentions.

Dr. Brand: May we have an assurance that total numbers will be set out in primary legislation? It appears at present that although we might specify certain matters in the Bill, much that could affect the workings of the clause is being left to the Lord Chancellor, of whose thinking we have no inkling.

Mr. Denham: We must be careful about making such a promise at the moment. We want at this stage to avoid doing anything that will constrain the proper discretion of the Lord Chancellor, so as to compromise the independence that we want to bring about. In addition, it is probably undesirable to put exact numbers of members in the Bill, in case circumstances should change in future. It should be possible to provide the hon. Gentleman by Report with a clearer idea of the overall shape of the body as we expect it to be established initially.

Mr. Hammond: The Minister really must not plead the need to protect the proper independence of the Lord Chancellor in making the relevant decision as a reason for not answering, when the Bill itself states that the number specified by the Lord Chancellor shall have the consent of the Secretary of State. Clearly the Secretary of State, on whose behalf the Minister is speaking to the Committee, has a power of veto.

Mr. Denham: One issue that we must consider between now and Report is whether the wording of paragraph 2 of the proposed new schedule is appropriate.

Mr. Hammond: This may be a point of order, Mr. Maxton. I take it that I am right. The Minister sighs, but we, the humble members of the Committee, can consider only the Bill that the Government have presented. We cannot be expected to second-guess what the Government might be thinking about doing by Report. The whole point of the Committee is to scrutinise the Bill. It is disingenuous of the Government to have in mind a raft of amendments that they do not table in Committee, and to wait until the effective end of scrutiny and table them on Report.

Mr. Denham rose—

Dr. Brand: On a point of order, Mr. Maxton. If the clause is not agreed, can the Minister table an alternative clause later in the Committee's proceedings?

The Chairman: Of course he can.

Mr. Denham: Having indicated last week that the Government would need to table amendments on Report, it might help the Committee to know how we want the authority to operate. It will be for the Lord Chancellor to determine the qualifications and experience that members of the FHSAA must possess. The constitution of panels to hear cases will be at the discretion of the president, as will some of the operational matters that have been raised.

I was asked about the location of the authority. I would prefer that the staff remain in Harrogate; we would not want to lose the expertise of those staff who now work for the FHSAA. It will be for the authority itself to determine whether there should be regional panels, and it would depend on the case load. It is difficult to put an exact figure on the number of cases that might be brought forward, but we expect the president's job to be part-time father than full-time.

As for the other bodies that will come under the supervision of the Council on Tribunals, the Lord Chancellor will need to lay down certain rules on the functions of the appeals authority. Amendments will be tabled to make provision for that. We shall need to table amendments to require the appeals authority to prepare an annual report, and to allow regulations to be made on the procedures to be followed on the receipt of an appeal. Those amendments will make a significant number of changes, and I regret that the clause is not as fully developed as I would like. None the less, I believe that it is sufficiently correct for me to move that it stand part.

Mr. Hammond: In view of what the Minister said, the Department of Health might like to think next time it presents a Bill about making use of the pre-legislative scrutiny arrangements introduced by the Government. It seems that health Bills need many Government amendments; perhaps it happens with other Bills, too.

The Minister has not replied to several specific questions. I remind him of them. How and by what method will the special health authority be disbanded, if that is the case? What are we to understand by the term ``misbehaviour'' in paragraph 4(b) of proposed new schedule 9A? Will the Minister explain about medical practitioners and ophthalmic opticians providing general ophthalmic services? I certainly do not understand that matter, and I would appreciate an explanation.

I have not told the Minister—although I have told his colleague the Minister of State, Department of Health, the hon. Member for Barrow and Furness (Mr. Hutton)—how pleased I am that he has decided to err on the side of caution in ensuring that the statement made by the Secretary of State that the Bill is compliant with the Human Rights Act 1998 is correct.

In my constituency, there is a card-carrying member of the Labour party, who happens to be a professor of law. There are not many card-carrying members of the Labour party in my constituency, but he is a very nice chap, and he is about to publish a book that covers the Human Rights Act. One part of the book, which will be of great interest to Ministers, contains the opinion that if a Minister makes such statement on a Bill, the Bill becomes law and the courts subsequently find that the Act is not compliant, the Minister will be required to resign, having materially misled Parliament. Perhaps the Minister will pass on that snippet of information to the Secretary of State. I am sure that my constituent, being a card-carrying member of the Labour party, will ensure that Government Members receive copies of the book when it is published. I am delighted that the Minister has decided to err on the side of caution.

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Prepared 25 January 2001