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Mr. O'Brien:
What we are personally qualified to do is not relevant, because we are trying to frame a Bill that is right for those who do the professional job. As it happens, however, I am a qualified lawyer. I am a solicitor of the Supreme Court of England and Wales.
I have not practised for 19 years, but I did practise in the City of London for a number of years. I have no judicial experience, but I had considerable arbitration experience, which is of a judicial nature. What is interesting is that not only has one of the hon. Gentleman’s colleagues sat on one of the GMC panels, but so has one of mine. My colleague is legally qualified; the other is not. That is not to say that either has done the job any worse than the other. On the contrary, they both did it well.
Mr. O’Brien: I do not want to enter into a dialogue. What matters is that plenty of people in another place will be very exercised by this issue, given that Lady Justice Smith gave important and compelling evidence in a most reasoned way. When we heard her evidence, hon. Members on both sides of the Committee were at one in thinking that it was impressive and compelling. She advanced the idea that there should be legally qualified chairs for the bodies. That is why it is important that we give the issue an airing.
Procedure does not enable us to vote separately on Government amendment No. 23 and amendment No. 85. Amendment No. 23 is only a partial solution. What it sets out is not mandatory; it simply says that there will be legally qualified persons on a list from which the chairman can be chosen. Amendment No. 85 would have made that mandatory. It would have given earnest to what Lady Justice Smith appeared to be advising in oral evidence, for which all Committee members were present. I therefore recognise that I have to place on the record, with my best efforts, a signal to those who will consider the Bill in another place. I know that this sort of issue has exercised them greatly in the past, and rightly so. I would be surprised if we do not have to deal with it again when the Bill comes back to the House with Lords amendments. I very much hope that it will be given a proper airing in the other place, and I expect them to find a way to achieve what procedurally I have not been allowed to do.
I cannot press amendment No. 85 to a vote, and on the basis of my comments it would be wrong and invidious of me to divide the House on Government amendment No. 23. If anyone sought to put that to a vote, we would abstain because it is better than what we have got, but it is by no means sufficient. I hope that that places on the record our position and that another place will achieve what we have not been able to achieve so far.
Sandra Gidley: Most of what I want to say has been covered by the Minister and the hon. Member for Eddisbury (Mr. O'Brien). We have an interesting example of how the new evidence sessions have been useful. I cannot recall a single submission from the great and good in Second Reading briefings or the like on legally qualified chairs. We raised the issue in what was almost a throw-away question, when I said:
“Would you like to see any other changes to the Bill?”
“There is one matter, which you might feel is quite small.” ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
It ended up being something that exercised a great deal of time in Committee. I think that that is right, because, as others have pointed out—Lady Justice Smith has been quoted at length—there are good reasons why legal chairs could make a difference. The costs bear that out as well. However, I was also quite taken with the Government’s argument that a legally qualified chair may not be necessary in every case. What I do not think we teased out in enough detail in Committee is where the bar might be set. The document referred to by the hon. Member for Eddisbury gives costings for 20 per cent., 25 per cent. and 50 per cent.—
Mr. O'Brien: But not for 100 per cent.
Sandra Gidley: I am not, as yet, entirely convinced that legal chairs are needed in 100 per cent. of cases. However, I think it a shame that the House’s procedures prevent us from voting on both options, and I am fairly sure that the issue will arise again in another place.
I thank the Minister for listening to all the points that were raised. In Committee he was clearly sympathetic. Amendment No. 23 is unlikely to be put to the vote because there is no opposition to it, but if it had been, I might well have supported it. If the matter returns to us, it would be helpful to be given a little more detail about what might and might not be considered appropriate for a legal chair. I appreciate that to an extent that may be in the hands of the profession and the OHPA, but when we are trying to pass legislation, a lack of clarity about the outcome is not always helpful.
Amendments made: No. 24, page 47, line 8 , leave out ‘lay members list’ and insert
‘list of persons eligible to serve as lay members provided for by section 96(1)(a) (the “lay members list”)’.
No. 25, page 47, line 9 , leave out ‘professionally qualified members list’ and insert
‘list of persons eligible to serve as professionally qualified members provided for by section 96(1)(b) (the “professionally qualified members list”)’.
No. 26, page 47, line 14, at end insert—
‘(3A) Rules under subsection (3) may in particular make provision requiring the selection in specified circumstances of a chair who is legally qualified for the purposes of section 96(1A)(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.’.
No. 27, page 47, leave out lines 16 to 20.—[ Mr. Bradshaw.]
Amendments made: No. 28, page 47, line 24, at end insert—
‘(aa) persons eligible to serve as chairs,’.
No. 29, page 47, line 26, at end insert—
‘(1A) The list of persons eligible to serve as chairs is to consist of—
(a) persons who are legally qualified,
(b) persons who are also included on the list of persons eligible to serve as lay members, and
(c) persons who are also included on the list of persons eligible to serve as professionally qualified members.’.
No. 30, page 47, line 33, at end insert—
‘(3A) Rules made by virtue of subsection (3) must make provision about—
(a) the qualifications which a person must have in order to be “legally qualified” for the purposes of subsection (1A)(a), and
(b) the experience which a person must have and the training which a person must have undertaken in order to be eligible for appointment to the list of persons eligible to serve as chairs by virtue of subsection (1A)(b) or (c).’.— [Mr. Bradshaw.]
Amendments made: No. 31, page 47, line 39, after ‘OHPA’, insert ‘—
No. 32, page 47, line 40, at end insert ‘, and
(b) may pay to any person whom it proposes to include on a list such allowances and expenses as it may determine in connection with the provision of training for the person by virtue of subsection (2)(b).’.
No. 33, page 47, line 41, after ‘OHPA’, insert ‘—
No. 34, page 47, line 42, at end insert ‘, and
(b) may provide, or arrange for the provision of, such training for persons whom it proposes to include on a list as it may determine.’.
No. 35, page 48, line 5 , leave out ‘either’ and insert ‘any’. — [Mr. Bradshaw.]
Amendments made: No. 36, page 48, line 21, after ‘make’, insert ‘—
(a) ’.
No. 37, page 48, line 22, at end insert ‘, and
(b) provision for a fitness to practise panel not to be advised by a legal assessor if the chair of the panel is legally qualified for the purposes of section 96(1A)(a).’.— [Mr. Bradshaw.]
Mr. Stephen O'Brien: I beg to move amendment No. 81, page 53, line 3, at end insert—
‘(8A) Neither the creation of the regulations under this section nor the payment of any fees under those regulations shall affect the charitable status of a regulatory body.’.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Amendment No. 2, in clause 108, page 53, line 39, at end insert—
‘(2A) In section 25 of the 2002 Act, in subsection (2), after paragraph (d) insert—
(e) to promote the provision of independent advice to members of the public in respect of the reporting of concerns to any of the bodies listed in subsection (3).’.
Government amendments Nos. 38 to 61.
Mr. O'Brien: As I am sure the House knows, the General Medical Council is a registered charity. Over time, other health regulators that may also be charities will come under the auspices of the OHPA, and will be required to pay a fee to that body. All registered charities have duties in relation to how they spend their income, and the GMC and other regulators are no exception, but the Bill contains provisions that directly affect the way in which the GMC should spend a significant proportion of its income, while leaving it little if any discretion in respect of how it does so.
Given that the OHPA’s duties will mirror functions that already sit within the charitable body, the funding of a non-departmental public body such as the OHPA—whose purpose is to uphold the standards of a health profession—is clearly unlikely to fall outside the charitable remit. However, it would seem wrong to place a burden on the GMC or another regulator that might have the potential to jeopardise its charitable status without making it clear that that was not Parliament’s intention.
Mr. Devine: As one who worked in the health service and had to deal with the GMC, I am astonished by the hon. Gentleman’s argument. Surely he is not suggesting that, after Shipman, we should not change the rules.
Mr. O'Brien: I am not sure how closely the hon. Gentleman has been following the debate. He ought to know that, as has been repeatedly put on record, we have strongly supported a change in the rules. I am a little perplexed about how the question could even have entered his mind, but perhaps he has not been able to follow the Bill’s progress as closely as his question might have merited. We have not voted against the Bill, and we welcome the changes. What I am talking about is charitable status, which I hope is deeply important to the hon. Gentleman. If the GMC is not a charitable body, there will be a series of consequences.
8.15 pm
Let me proceed with my argument. It may help to clarify any confusion that may have arisen in the hon. Gentleman’s mind. The Government may argue that we should not bind the hands of the Charity Commission, a body that operates independently of Ministers, but there are clear precedents for such action in other legislation. For example, further and higher education corporations are designated charities under section 41 of the Teaching and Higher Education Act 1998, and common investment funds are classed as charities under section 24 of the Charities Act 1993. Amendment No. 81 is intended to prevent the operation of fees from introducing any ambiguity into the designation of the GMC as a registered charity.
As the Liberal Democrats tabled amendment No. 2, it will be for a Liberal Democrat Member to speak to it. The others are Government amendments. While most of them appear to be tidying-up measures, amendment No. 48 appears to disqualify hon. Members from sitting on OHPA adjudication panels. I do not believe that involvement with the GMC is prohibited by membership of the House of Commons, and I should be grateful if the Minister could explain what changes the Government
intend. If the answer is not satisfactory, I dare say that the matter will be pursued in another place, but, as the Minister must be aware, some Members are currently involved in the adjudication processes of the GMC.
We also need to tackle the issue of the costs of the OHPA. I thank the Minister for furnishing us with the report on the costs that we had requested, although I was disappointed that we did not receive it before the Committee stage. I hope that he will be able to provide the independent report by financial advisers engaged by the GMC, which was supposed to be available at the end of January and which is mentioned in column 365 of the record of our Committee proceedings.
The Government report divides the costs into three groups: set-up and transition costs for the GMC, other costs to be paid by the Department, and adjudication and running costs. The set-up costs, the Government finally reveal, will be about £3 million to £4 million over two years, but they are to be “further refined”. The other costs, such as those of High Court referrals or big cases, have not been estimated, and I should be grateful if the Minister could identify the nature of that liability. The adjudication costs are not expected to exceed the current GMC costs of around £11.5 million. The running costs are not identified, which is odd, but the paper does identify a probable increase of between £20 and £30 per registrant per year. That would increase the General Medical Council registration to more than £400 and that of the General Optical Council to almost £200. A full GMC registration on the medical register is to rise to £390 a year with effect from April this year, having been frozen at £290 since 2002, and GOC registration stands at £169 per annum. It also suggests running costs for the OHPA of about £6 million per annum—I hope that the Minister will be able to confirm that figure.
We remain deeply unsatisfied about the independence of the OHPA. We have searched Government amendments for where the Minister might give assurances about the independence of its decision making, but as the organisation is created the Department will needlessly still have its hands all over its finances. That is neither necessary nor desirable. Concerns remain over the civil standard of proof, which we discussed earlier and the Government failed to address. We were also looking for permanent legally qualified chairs, but we have now assented to a different situation.
The Government must recognise that as the Bill progresses a full response is required on professional regulation and the impact that the practice of defensive medicine might have on our NHS, particularly financially—I hope there will be time to provide that when the Bill is considered in another place. I am sure that the Minister recalls that this was one of the areas of greatest contention during oral evidence sessions, and I think all Members were concerned about the BMA presenting the idea that the new regime would create over-defensiveness. I do not wish to be too critical—those giving that evidence must have thought that they were making representations on behalf of their members—but we need to bottom out what has been expressed on behalf of doctors about the impact of what is going on in terms of defensive medicine because we do not want that, and I do not believe it is likely to be a trend or a consequence; I would not be able to support the Bill if I did. Although I do not
believe that to be the case, it is important to take such representations seriously and address them, rather than simply dismiss them out of hand. If necessary, we might have to appeal, through the BMA, to make sure that doctors are reassured that they need not be over-concerned about that. I have been getting the impression that the Minister might feel that that is a worthwhile point, which is good.
The Government amendments on professional regulation would give the power through secondary legislation to impose a lay majority on the regulatory bodies. The GMC has been arguing for parity, and that makes sense for the confidence of both the public and the profession. I dare say that that will be pursued in another place.
I have spoken to amendment No. 81 and I have addressed the other issues that arise. If the Minister does not provide a satisfactory response on the charitable status of the GMC, I might need to press the amendment to a Division.
Sandra Gidley: I shall start by speaking to Liberal Democrat amendment No. 2, which would make it a duty of the Council for Healthcare Regulatory Excellence to commission independent advice and information services to assist members of the public who have concerns about the fitness to practise of a health professional. One decision that might have to be made would be whether to report a concern to a regulatory body. If the decision was to go ahead with that, there would be a duty to provide help in reporting the concerns in an effective way, and if the matter were dealt with by the OHPA there would be a duty to support the member of the public through the process.
There is currently no service to inform members of the public of where to report concerns about health professionals or to help them do so. That is a great problem. Let us take the Shipman case as an example. The people who were directly affected by Shipman were not in a position to complain, but his mode of operation might have been slightly different and those who might have had concerns because they felt they were being targeted in some way would have been members of one of the most vulnerable groups in society. Many people who have reached the age of 60 do have the time and ability to deal with such things, but some of them, especially if they are not well and life is a bit of an effort, find it difficult to discover in our complicated society where they should go to get the help they need. There is therefore a feeling that many problems are not brought forward because people do not know how to do that; advice is patchy, and no support is available.
Many stakeholders believe that this need should be met. There would have to be a cap on the system because we would not want there to be an open invitation for everybody to take advice, but provided that certain criteria are met this could provide a useful way of enabling people who would not otherwise bring complaints to bring them early, so that problems are nipped in the bud. This duty would be compatible with the CHRE’s overall duty to serve patients and the public and promote excellence in health professional regulators.
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