Schedule
7
Adjudication
functions under Medical Act 1983 and Opticians Act
1989
Sandra
Gidley:
I beg to move amendment No. 268, in
schedule 7, page 135, line 6, leave
out ‘must’ and insert ‘may’.
The schedule
inserts a new section into the Medical Act 1983 that provides for the
GMC to publish guidance on what are known as indicative
sanctions—that is, what sort of sanctions should be applied to
the doctor depending on the facts found by the adjudication panel. In
addition, the OHPA must take account of the guidance and new section
40A, which is set out in paragraph 11, provides the GMC with powers to
refer decisions to the relevant court on certain grounds such as
leniency.
Although it
is intended that the OHPA will be a separate and independent body with
an overall adjudication function, the new provisions I have outlined
will allow the GMC to continue to determine the sanctions that should
apply in fitness to practise decisions and the OHPA must take account
of such guidance in making its determinations. Further, the GMC will be
able to challenge decisions by the OHPA panels on a number of grounds.
The amendment is an attempt to provide the OHPA with greater
independence. The Minister spoke
earlier about the need for that, and the fact that it was highlighted by
the Shipman case, but it is not clear in the Bill that the OHPA will be
as independent as it should be.
Mr.
Bradshaw:
Schedule 7 inserts a new section into the
Medical Act 1983, allowing the regulator to publish
guidance on the factors affecting the
registrant’s performance and the appropriate sanctions. The
provision of such guidance follows Lady Justice Smith’s
recommendations as part of the Shipman
inquiry:
“Urgent
steps should be taken to develop standards, criteria and thresholds so
that decision-makers will be able to reach reasonably consistent
decisions at both the investigation and the adjudication stages of the
FTP procedures and on restoration applications.”
Under schedule 7, the OHPA will be
required to take account of such guidance in exercising its functions;
the guidance will not be binding and it will make its final decision
based on the facts of each individual case. The amendment would remove
the requirement on the OHPA to take account of the guidance and replace
it with an optional duty to do
so.
11.15
am
The
GMC has and will retain responsibility for setting and maintaining the
standards required of doctors. The guidance on the standards is
published as good medical practice and is widely regarded as setting
the international standard for medical practice. The GMC currently
publishes guidance for use by its fitness to practise panels when
considering what sanctions to impose following a finding that the
fitness to practise of a doctor may be impaired. Currently, the medical
and lay panellists appointed to sit on the panels exercise their own
judgments in making decisions, but they must take into consideration
the standards of good practice that the GMC has established, which have
been drawn up—and will continue to be drawn up—after wide
consultation, and which reflect what society expects of
doctors.
To allow the
OHPA discretion as to whether it will take account of that guidance
would, we believe, be likely to lead to confusion and possibly even
challenge about the conduct and outcome of cases. We think that it is
right and proper that the OHPA should take account of good practice
guidance, which is after all the basis on which the cases will be put
before its panels. That is why we have placed the obligation on the
OHPA in the Bill. As I have said, the panels will not be obliged to
follow rigidly the guidance published, but they must take account of
it. Given those reassurances, I hope that the hon. Lady will feel able
to withdraw her amendment.
Sandra
Gidley:
I thank the Minister for the
clarification. It seems that the Bill as drafted is not as prescriptive
as I had originally envisaged, so I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Bradshaw:
I beg to move amendment No. 95, in
schedule 7, page 135, line 8, leave
out
“rules made by
virtue of paragraph 5A(3)”
and insert ‘paragraph
5A(3E)’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 96 to 116 and Nos. 120 and
121.
Mr.
Bradshaw:
The amendment will enable the GMC to refer to
the OHPA cases where a registrant fails to submit to, or comply with,
an assessment of their performance in cases involving fitness to
practise.
Amendment
agreed to.
Amendments
made: No. 96, in schedule 7, page 135,
line 15, after ‘“the
Adjudicator”,’
insert—
‘( ) after paragraph
(d) insert—
“(da)
decisions of the Adjudicator to make a direction under paragraph 5A(3E)
of Schedule 4 to this Act and decisions of the Adjudicator under
section 35D below that relate to such a
direction;”,’.
No.
97, in
schedule 7, page 136, line 3, leave
out from ‘subsection (4)’ to end of line 4 and
insert—
‘(a) for “a
Fitness to Practise Panel have” substitute “the
Adjudicator has”,
and
(b) in paragraph (c) for
“rules made by virtue of paragraph 5A(3)” substitute
“paragraph
5A(3E)”.’.
No.
98, in
schedule 7, page 136, line 22, leave
out sub-paragraph (11) and
insert—
‘(11) In subsection
(9)—
(a) in paragraph
(a)(iii) for “rules made by virtue of paragraph 5A(3)”
substitute “paragraph 5A(3E)”,
and
(b) in paragraph (b) for
“a Fitness to Practise Panel” substitute “the
Adjudicator”.’.
No.
99, in
schedule 7, page 136, line 25, at
end insert—
‘( ) In
subsection (11)(b) for “rules made by virtue of paragraph
5A(3)” substitute “paragraph
5A(3E)”.’.
No.
100, in
schedule 7, page 136, line 40, after
‘(2)’ insert—
‘(a) for “rules made by virtue of
paragraph 5A(3)” substitute “paragraph 5A(3E)”,
and
(b)
’.
No.
101, in
schedule 7, page 136, line 42, leave
out sub-paragraph (3) and
insert—
‘(3) In subsection
(3)—
(a) in paragraph
(a)—
(i) in
sub-paragraph (i) after “10” insert “or
10A”, and
(ii) omit
sub-paragraph (ii), and
(b) in
paragraph (b) for “paragraph 5A(4) of that Schedule”
substitute “paragraph 5A(5) of Schedule 4 to this
Act”.’.
No.
102, in
schedule 7, page 137, line 26, leave
out ‘rules made by virtue of paragraph 5A(3)’ and insert
‘paragraph
5A(3E)’.
No.
103, in
schedule 7, page 137, line 41, leave
out ‘rules made by virtue of paragraph 5A(3)’ and insert
‘paragraph
5A(3E)’.
No.
104, in
schedule 7, page 139, line 37, at
end insert—
‘ In
section 41C of the 1983 Act (effect of directions or orders on a
licence to practise), in subsection (1), for “rules made by
virtue of paragraph 5A(3)” substitute “paragraph
5A(3E)”.’.
No.
105, in
schedule 7, page 140, line 11, leave
out ‘paragraphs (a) and (b)’ and insert ‘paragraph
(a)—
(i)
’.
No. 106, in
schedule 7, page 140, line 12, at
end insert—
‘(ii) in
sub-paragraph (ii) for “rules made by virtue of paragraph
5A(3)” substitute “paragraph
5A(3E)”,’.
No.
107, in
schedule 7, page 140, line 12, at
end insert—
‘( ) in
paragraph (b) for “a Fitness to Practise Panel”
substitute “the Adjudicator”,
and’.
No.
108, in
schedule 7, page 142, line 16, leave
out from beginning to end of line 21 and insert ‘omit
sub-paragraphs (3) and
(3A),’.
No.
109, in
schedule 7, page 142, line 21, at
end insert—
‘( ) after
sub-paragraph (3A)
insert—
“(3B) If
the Registrar is of the opinion that a person who is the subject of an
assessment of the standard of the person’s professional
performance—
(a) has
failed to submit to the assessment,
or
(b) having submitted to the
assessment, has failed to comply with reasonable requirements imposed
by the Assessment Team,
the
Registrar may refer the matter to the
Adjudicator.
(3C) If the
Investigation Committee are of the opinion that a person who is the
subject of an assessment of the standard of the person’s
professional
performance—
(a) has
failed to submit to the assessment,
or
(b) having submitted to the
assessment, has failed to comply with reasonable requirements imposed
by the Assessment Team,
the
Investigation Committee may direct the Registrar to refer the matter to
the Adjudicator and, on receipt of the direction, the Registrar shall
make such a reference.
(3D) The
Registrar shall without delay serve on the person who is the subject of
the assessment notification of the making of a reference to the
Adjudicator under sub-paragraph (3B) or
(3C).
(3E) Where a matter is
referred to the Adjudicator under sub-paragraph (3B) or (3C), the
Adjudicator may, if it thinks
fit—
(a) direct that the
person’s registration in the register shall be suspended (that
is to say, shall not have effect) during such period not exceeding 12
months as may be specified in the direction;
or
(b) direct that the
person’s registration shall be conditional on the
person’s compliance, during such period not exceeding 3 years as
may be specified in the direction, with such requirements so specified
as the Adjudicator thinks fit to impose for the protection of members
of the public or in the person’s
interests.
(3F) Where, under
sub-paragraph (3E), the Adjudicator gives a direction for suspension or
a direction for conditional registration the Registrar shall without
delay serve on the person concerned notification of the direction and
of the person’s right to appeal against it under sub-paragraph
(5).
(3G) While a
person’s registration in the register is suspended by virtue of
a direction under sub-paragraph
(3E)—
(a) the person is
to be treated as not being registered in the register notwithstanding
that the person’s name still appears in it,
but
(b) sections 31A, 35C,
35CC, 35D, 35E and 39 are to continue to apply to the
person.”’.
No.
110, in
schedule 7, page 142, line 24, at
end insert—
‘( ) for
“by virtue of sub-paragraph (3) above” substitute
“under sub-paragraph (3E)”,’.
No. 111, in
schedule 7, page 142, line 27, at
end insert ‘,
and
( ) after
sub-paragraph (5)
insert—
“(5A)
Subject to paragraph 9 below, an appeal under sub-paragraph (5) must be
brought before the end of the period of 28 days beginning with the date
on which notification of the direction was served under sub-paragraph
(3F).”’.
No.
112, in
schedule 7, page 142, line 40, leave
out from ‘sub-paragraph (1)’ to end of line and
insert—
‘(a) after
“39(2),” insert “40A(9),”,
and
(b) after “this
Act” insert “or paragraph 5A(3D) or (3F)
above”.’.
No.
113, in
schedule 7, page 142, line 40, at
end insert—
‘( ) In
paragraph 9—
(a) in
paragraph (a) after “this Act” insert “or
paragraph 5A(3F) above”,
and
(b) after “section
40 of this Act” insert “or (as the case may be) paragraph
5A(5)
above”.’.
No.
114, in
schedule 7, page 142, line 42, at
end insert—
‘( ) After
paragraph 10
insert—
“10A (1)
A direction for suspension or for conditional registration given by the
Adjudicator under paragraph 5A(3E) above shall take
effect—
(a) where no
appeal under paragraph 5A(5) above is brought against the direction
within the time specified in paragraph 5A(5A) above, on the expiration
of that time;
(b) where such an
appeal is so brought but is withdrawn or dismissed for want of
prosecution, on the withdrawal or dismissal of the
appeal;
(c) where such an
appeal is so brought and is not withdrawn or dismissed for want of
prosecution, if and when the appeal is
dismissed.
(2) Where the time
for appealing against a direction is extended by an authorisation under
paragraph 9 above—
(a)
sub-paragraph (1) shall apply to the direction as if the reference in
paragraph (a) to the time specified in paragraph 5A(5A) above were a
reference to that time as so extended;
and
(b) if the authorisation is
given after the expiration of the time specified in paragraph 5A(5A)
above, the direction shall be deemed not to have taken effect on the
expiration of that time,
and
any reference in this Act to the time when such a direction takes
effect in accordance with this paragraph shall be construed
accordingly.”’.
No.
115, in
schedule 7, page 142, line 42, at
end insert—
‘( ) In
paragraph 11, in sub-paragraphs (1) and
(3)—
(a) after
“section 35D(2) of this Act” insert “or paragraph
5A(3E) above”, and
(b)
for “that section” substitute “section
35D”.’.
No.
116, in
schedule 7, page 142, line 42, at
end insert—
‘( ) In
paragraph 12 for “rules made by virtue of paragraph 5A(3) of
this Schedule” substitute “paragraph 5A(3E)
above”.’.—[Mr.
Bradshaw.]
Mr.
Bradshaw:
I beg to move amendment No. 117, in
schedule 7, page 148, line 11, at
end
insert—
‘
After section 23C of the 1989 Act
insert—
“23CA
Assessments
(1) If the
Adjudicator considers (on reasonable grounds) that it would be of
assistance to it, in dealing with any proceedings before it, for there
to be an assessment of—
(a) the standard and quality of the work done or
being done by the person to whom the proceedings relate
(“P”); or
(b) the
health, or specific aspects of the health, of
P,
the Adjudicator may request
the registrar to arrange for an assessor to be appointed to report on
the standard and quality of P’s work or (as the case may be) on
P’s health or specific aspects of P’s
health.
(2) On receipt of a
request under subsection (1), the registrar shall arrange for one or
more assessors to be appointed in accordance with rules made by the
Council.
(3) The Council may
make rules about the carrying out of the assessment and the making of
the report.
(4) If P fails to
submit to, or co-operate with, the assessment the Adjudicator may draw
such inferences from P’s failure as it considers
appropriate.
(5) This section
does not apply if the person to whom the proceedings relate is a body
corporate.”’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 118 and 119.
Mr.
Bradshaw:
The amendments do what the previous ones did,
but with relation to the Opticians Act
1989.
Mr.
O'Brien:
Briefly, both in relation to these amendments and
the previous ones: is there a reason why they have appeared in the Bill
now, rather than at the time of its original
publication?
Mr.
Bradshaw:
We were still in discussion with the relevant
regulatory bodies about the details.
Amendment
agreed
to.
Amendments
made: No. 118, in schedule 7, page 150,
line 39, at end
insert—
‘ In section 33 of
the 1989 Act (default powers of Privy Council), in subsection (3)(b),
after “23C,” insert
“23CA,”.’.
No.
119, in
schedule 7, page 150, line 39, at
end insert—
‘ In section 34
of the 1989 Act (subordinate legislation procedure), in subsection (2),
after “23C” insert “or
23CA”.’.—[Mr.
Bradshaw.]
Schedule
7, as amended, agreed
to.
| 
