NHS Reform and Health Care Professions Bill

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Mr. Hutton: At the end of clause 27(4)(a) there is a reference to ''any penalty imposed''.

Mr. Heald: Yes, that is what I am asking about. Am I right in thinking that it is the punishment, or the order that has been made, that is to be referred to the court, it having already been decided that there is guilt? When it has been decided that the allegation is well founded, we move on to the next step. Is that the part, the penalty side of the matter, that can be referred to court? I would be concerned if it were being suggested that the High Court could retry the case, and examine the question of innocence. Clearly, there is a difference between deciding whether the allegation was well founded in the first place and the next step—which I think is the one that can be referred to court—of what happens as a result of that.

I do not think that the Minister and I disagree that if the sentence is too lenient there is a good case for referring it to the High Court. If, however, he means that the High Court can start retrying the allegation to establish whether it has been proved, he and I might fall out. The principle of double jeopardy is not established in English law and is rarely approved of. There would need to be an exceptional situation if one were to agree to double jeopardy, where the proving of the allegation was concerned, although I think that the question of the penalty is different.

The decision referred to in subsection (1) seems to be the penalty decision. If the Minister can confirm that that is right, I do not need to say much more about the matter.

Dr. Richard Taylor (Wyre Forest): May I first say how pleased I am about the Christmas spirit? Whether it is that or a true sense of co-operation, I am delighted by it. I was becoming disillusioned about the chance of making many changes, so this is super.

I support the Opposition Members who pointed out that the BMA and the RCN are bothered that subsection (4)(a) might be used in other than exceptional circumstances. It would disarm their worries if some words from the explanatory notes were quoted in the Bill. These words get it exactly right:

    ''It is envisaged that the Council would do this in extreme cases where the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation.''

That says it all and it would be splendid were that somehow enshrined in the Bill.

Dr. Andrew Murrison (Westbury): I am concerned about double jeopardy. I think that we have before us the suggestion that professionals will be tried by their regulatory bodies but then, if that decision is not approved of because they are found innocent or because the decision is unduly lenient—it is heavily weighted—there is the option of them being tried by the High Court. Clearly, that increases the chance of a decision being made against them.

I cite the spectacle of Mr. Dhasmana, whom many will remember as the third man in the Bristol royal infirmary scandal. Having been found guilty of serious professional misconduct by the GMC, and having quite rightly had limitations placed upon his practice, he was retried within hours by the right hon. Member for Holborn and St. Pancras (Mr. Dobson), who said on ''Newsnight'' that he thought that the GMC had got it wrong and that Mr. Dhasmana should be struck off. That is not for me to judge, but the right hon. Gentleman felt that he was in a position to do so, thereby rubbishing eight months of serious consideration by the GMC and about £2 million of its resources in dealing with this incredibly complex and sensitive matter. I am worried that the council might act similarly. As it is weighted with ministerial appointees, it might be tempted to act in a way that was politically correct or to play to the gallery, thereby laying waste months and months of painstaking and expert consideration of a particular case.

How does the council intend to scrutinise such matters? I assume that it will not involve itself with preliminary proceedings, but we do not know that. Will they be considered in a sub-committee? If so, how will it be constituted? We need more detail about the scrutiny of cases of alleged professional misconduct.

My chief concern is that we have not adequately recognised the expertise of regulatory bodies and the painstaking way in which they dissect cases over many months. Many Labour Members still have in the back of their minds the notion that regulatory bodies are driven by health professions in their own interests. I hark back to a point that was made earlier in our deliberations. We tend to find—anecdotally, I admit—that lay members tend to be less censorious than the professionals sitting on regulatory bodies. I am worried that those bodies will not be given due recognition and that there will be a temptation for the council to refer cases to the High Court. We have received limited guidance about exactly what cases will be referred. Will they be cases of genuine concern or simply those that grab the attention of the media?

Mr. Hutton: We have had an important debate in which Opposition Members made sensible and fair comments.

It is important to keep one point firmly in the front of our minds. At present, the only appeal that exists against the decision of a regulator on someone's fitness to practise belongs to the registrant himself. No other remedy is available, either to the regulatory body or anyone else, to query whether those decisions have been in the public interest and properly protect members of the public. The fundamental question for members of the Committee is whether they are content for there to be no such ultimate last-ditch power of review. Our view is clear—the present situation is not satisfactory. That sentiment is shared by the regulatory bodies. They have reservations about the clause—that is fair enough—and I shall try to deal with those in a moment.

No one should interpret clause 27 as calling into question the professionalism or competence of the disciplinary bodies who currently discharge this function. They are doing a good job and protecting the public very effectively. There is no argument about that. The clause is simply an attempt to remedy what is generally perceived to be a loophole, not a subliminal criticism of the work of the regulatory bodies.

Turning to the comments of the hon. Members for Wyre Forest (Dr. Taylor) and for Westbury (Dr. Murrison), we envisage that the clause will work in the same way as clause 25—as a provision of last resort to deal with exceptionally grave cases in which there has been a perverse decision or the public interest has not been fully and properly served. There have been very few such cases—probably only half a dozen in the past four or five years. The power will need to be used only in exceptionally rare circumstances.

If Opposition Members want to reassure themselves, they should have a good look at clause 27(4), which gives three separate thresholds that the council must satisfy before it can refer a case to the High Court. First, it must satisfy itself that the decision has been unduly lenient; secondly, that it should not have been made; and, thirdly, that it would be desirable for the protection of members of the public. I am convinced that the clause does not constitute a right to roam or to interfere with every disciplinary decision taken by the regulatory bodies, and I would not propose it if it would have that effect.

10.15 am

It is worth remembering that—as I made clear in relation to previous amendments, when the Committee accepted my argument—it is the final decisions of the appropriate committee or body that will be made subject to such exercises of the power by the council. If we had decided that earlier decisions—for example, not to investigate a case at all—could be subject to review, that could be seen as driving a coach and horses through professional self-regulation. The provision is based on the fact that we trust the regulatory bodies implicitly to do this work. To give the council a right to appeal or interfere in decisions such as not to initiate proceedings would be a much more serious intervention in the professionally led self-regulation arrangements in which we believe and have confidence. We have tried on several occasions, through amendments and argument, to clarify our intentions and to reassure hon. Members that the Bill does not constitute a loss of faith on our part in professionally led self-regulation or a lack of confidence in those who are doing that work.

The hon. Member for North-East Hertfordshire (Mr. Heald) asked whether findings or punishments would be subject to potential reference to the High Court. The answer is yes in both cases, and rightly so. That is stipulated by subsection (2)(a). It is important that both a decision to impose a sanction and a decision not to do so should be subject to referral. To confine the right to one or the other would not be terribly sensible.

Mr. Heald: I understand that. It should be viewed in the light of the final words of the subsection, which are

    ''under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies''.

That seems to relate only to the punishment aspect, not to the part of the hearing that deals with whether the allegation is well founded. To give an example, section 22(4) is the part of the Osteopaths Act 1993 that deals with punishment.

Mr. Hutton: I am grateful to the hon. Gentleman for bringing that example to mind. We have always intended that both aspects of a final decision—a decision not to impose a sanction as well as a decision to do so—should be reviewable if the three thresholds in subsection (4) are met and the council is satisfied that a case should properly be referred to the High Court.

Mr. Heald: If someone is accused of incompetence and the disciplinary body finds that to be the case, so the allegation is proved, two potential options could be to take a disciplinary measure that is too lenient or not to take one at all. The Minister is suggesting that in either instance the matter can be referred to the court. However, that is not really appealing the finding of fact on whether he was incompetent.

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Prepared 13 December 2001