Clause
93
Fitness
to practise
panels
Mr.
O'Brien:
I beg to move amendment No. 204, in
clause 93, page 46, line 6, after
a insert legally
qualified.
The
purpose of the amendment is to make only those who are legally
qualified eligible to be chairs of fitness to practise panels. We note
that under schedule 6, the chair of the OHPA must be legally qualified
and that clauses 96 and 97 make provision for legal and clinical
assessors respectively to give relevant advice to fitness to practise
panels. I ask the Committee to bear in mind the fact that there is a
cross-referral from clause 93 to clause 104, which is the standard of
proof clause. Due to the way in which the Bill is drafted, we find
ourselves debating this element before we come to the standard of proof
element, but I am sure that members of the
Committee will recall the evidence of Lady Justice Smith in relation to
both matters, particularly on understanding the question of grading the
proof required when moving to the civil standard of proof. That would
not pose problems for somebody who was legally qualified, as I will
come on to when we debate clause 104, but she expressed concern about
the chairs of the panels not being legally
qualified.
Lady Justice
Smith particularly noted in her oral evidence that
adjudication panels should be
chaired by legally qualified
people.
She went on to
say:
Chairing
a disciplinary tribunal is a job for a legally qualified person, not a
lay person. Legally qualified people who appear in front of such
tribunals are capable of running rings round the tribunal if no one on
the panel is legally qualified. The proceedings would take a lot longer
than they needed to if there was not a legally qualified chair. You
would achieve a much higher standard of reasoned decision if you had a
legally qualified chair because writing a judgment, which is what such
a decision is, is a job that requires professional
expertise.[Official Report, Health and
Social Care Public Bill Committee, 8 January 2008; c. 37,
Q64.]
She was referring to
recommendation 79 in her fifth report of the Shipman inquiry, which
states:
In
the event that the GMC retains control of the adjudication stage, it
should appoint a number of legally qualified chairmen who should, as an
experiment or pilot, preside over the more complex FTP panel hearings.
The results of the pilot scheme should be scrutinised to see whether
there are benefits, whether in terms of the improved conduct of
hearings, more consistent outcomes, improved reasons and/or fewer
appeals.
I note in
particular that the recommendation is conditional on the GMC retaining
control of the adjudication stage, which of course it is not, and that
pilots are sought on more complex hearings. At the time of the inquiry,
she also explored the possibility with Sir Donald Irvine, the former
president of the GMC, who
noted:
I
think the arguments are pretty closely balanced, but I think on balance
I would stick with a non-legally qualified Chairman provided that
people are well trained and that there is a very good legal
assessor.
In
her oral evidence, Lady Justice Smith brought out the issue of having
if not legally qualified chairs, at least a legally qualified person on
the panel, which would fit into the Bill most obviously at clause
93(2). While clause 96 makes provision for a legal assessor, there is
no requirement for fitness to practise panels to have a legal assessor
in full-time attendance. During my examination of the Minister in an
evidence-taking session, he said that the Government would be willing
to look at the issue of legally qualified chairs and
were
certainly happy to
go away and think a bit further about
that
if there was wide
concern in the Committee. The Minister also suggested that
the GMC was a bit iffy about that
issue.
Or was it
sniffy?
Mr.
O'Brien:
I leave it to be determined over time and the
purposes of history. I think we all heard sniffy, but I am glad to see
that the Official Report states iffy, so
everybody is happy. The Minister said,
the GMC was a bit iffy about that
issue because its view was that in some cases it is
importantparticularly in complex medical
cases
Let us not
forget that many
are
that the
chair has medical rather than legal
expertise.[Official Report, Health and
Social Care Public Bill Committee, 10 January 2008; c. 98,
Q238.]
I would be grateful,
therefore, if he will give me the reference for that assertion as I
cannot see it in the GMCs evidence. It is vital to make the
link between what the Minister said and the GMCs evidence on
that point. As I read it, the GMC was more at pains not to give extra
work to lawyersas someone who has not practised for 19 years,
that comment cannot be levelled at meand to point out the
constantly high quality of the decisions that its fitness to practise
panels make.
I have a
helpful communication from my hon. Friend the Member for Woking
(Mr. Malins) who is both a lawyer and sits on the GMC panel.
He makes the following point, which is important in case anyone thinks
that the amendment is a veiled criticism of the calibre of the people
who are currently chairing the
panels:
I
have sat under about a dozen chairmen. One of these is, as it happens,
an ex clerk to the Justices and a solicitor and he is tip top. Under
him, cases rattle on at a correct and proper
pace.
He compliments the
person and goes on to say that they are doing well. I will not read out
the whole letter, but my hon. Friend points out how essential training
isnot least in matters of procedure and lawfor the
system to work well. Considering the new scheme that the Government
have put in place and Lady Justice Smiths concern about the
absence of legally qualified chairmen, we have reached the point where
if we are to make any difference to and improve what the GMC has done,
it should be without criticism of the past because that would be both
disproportionate and unfair. The amendment provides something extra to
enable us to ensure that future prospects are
improved.
Finally,
in response to my questions on the civil standard of proof, when Lady
Justice Smith prayed in aid for her argument in favour of legally
qualified chairman she
said:
How
the measure works in practice will require considerable training. That
is one of the reasons... for having a legally qualified chairman.
The chairman will understand how it works. If you tell a lay person how
to apply the sliding or variable standard of proof, they might find
themselves in some difficulty, but a lawyer would
not.[Official Report, Health and Social Care
Public Bill Committee, 8 Jan 2008; c. 40, Q71.]
In conclusion, although I thank
the Minister for his earlier willingness to consider the issue more
closely, I have shown that a number of considerations need to be
addressed: the change that the creation of the OHPA delivers, the
impact and interpretation of the civil standard of proof, the
complexity of the case before the panel and the length of time it takes
to conclude a
panel.
It
was the GMCs understanding that the Bill did not preclude the
selection of legally qualified chairs. I believe that to be true, but I
would be grateful if the Minister could confirm it. However, for the
legally qualified person to be eligible to chair, they would have to be
on either the lay members list or the professional members list, so
they have two eligibility hurdles to leap, rather than just one. Would
it not be sensible for the Bill to
make some provision for future regulations concerning either a legally
qualified list or a demarcated legally qualified constituency in both
lists?
Given
the evidence I have laid before the Committee and the advice of such
wise heads, it would be advantageous for the Department to follow Lady
Justice Smiths original recommendation and at least set up a
pilot to establish whether legally qualified chairs make a substantial
difference. If the Minister is amenable to that idea, the Bill should
be framed to reflect most effectively the outcomes of those
pilots.
I hope the
Minister recognises that the hearings could be made more efficient
through the use of legally qualified chairs. I also hope he recognises
the power of Lady Justice Smiths contention that the silver
standard of proof would be better administered by a legally qualified
chair and that it might be useful to pilot
that.
Sandra
Gidley:
I support the aim of the amendment. As the hon.
Gentleman mentioned in his concluding comments, the clause as drafted
has a lay list and a professional list. There seems to be no provision
for the inclusion, even in the lay list, of someone who is legally
qualified. Consequential amendments are needed if the principle of that
argument is approved.
I, too, was
taken by Lady Justice Smiths oral evidence to the Committee. I
do not want to repeat what the hon. Gentleman said, but the following
comments of Lady Justice Smith are worth referring
to:
I believe in horses
for courses and in professional expertise being matched to the nature
of the tasks in hand. Chairing a disciplinary tribunal is a job for a
legally qualified person, not a lay
person.
I assume by that
she means a medically qualified
person.
Legally
qualified people who appear in front of such tribunals are capable of
running rings round the tribunal if no one on the panel is legally
qualified. The proceedings would take a lot longer than they needed to
if there was not a legally qualified chair. You would achieve a much
higher standard of reasoned decision if you had a legally qualified
chair because writing a judgment, which is what such a decision is, is
a job that requires professional
expertise.[Official Report, Health and
Social Care Public Bill Committee, 8 Jan 2008; c. 37-8,
Q64.]
11.30
am
I
hold no particular brief for the legal profession, and I am not sure
that lawyers were the best example to choosea lot of people are
unhappy with some of the fitness to practise decisions, but we are not
here to discuss that. However, I was persuaded by the argument that the
proposal would save time and be more effective, because somebody who
has intimate knowledge of the law would be ahead of any panel, however
well trained it was. There is always flux in the new panels as people
usually serve on them only for a certain length of
time.
Jeremy
Wright (Rugby and Kenilworth) (Con): Does the hon. Lady
agree that one of the other advantages of having a legally qualified
chairman would be not only legal experience but judicial experience,
which is highly likely in someone experienced enough to do that
job?
Sandra
Gidley:
That is a helpful point. I was about to conclude
my remarks by saying that shorter, sharper proceedings would help:
justice would be seen to be
done, and somebody with overall knowledge of the way that the justice
system works, with the skills set to harness the arguments and present
them in a reasonable form, should not be dismissed lightly. Even if the
Minister is not inclined towards the amendment, I hope that he looks
further at the provision. I was persuaded by Lady Justice Smith that
having only legally qualified advisers would not be
enough.
Mr.
Bradshaw:
As I have indicated, we agree with what
Lady Justice Smith said and that a legal chair might add some
discipline to proceedings, which could be helpful in lengthy and
complex cases. However, we are not convinced that the panel would need
a legally qualified chair in every case of fitness to practise, as the
amendment would require.
I will give a
couple of examples that might be helpful. For instance, if the issue at
stake is the physical or mental health of the practitioner, one might
argue that it would make more sense to have a medically qualified,
rather than legally qualified, chair. A legally qualified chair would
probably be unnecessary in review hearings where the panel is
considering whether continuing restrictions are required. The same
applies to conviction cases where the panel considers a case that has
been handled in the courts, or in determination cases where the panel
is considering a decision by another regulator, perhaps one from
abroad. Findlay Scott referred to those concerns in his evidence to the
Committee. He did not specifically say that there may be cases where a
medically qualified chair would be preferable, but he implied it
strongly when he said that he did not see a need for both legal
assessors and a legally qualified
chair:
What
we have sought to do within the current arrangements is persist with
the model based on the legal assessor but occasionally have legally
qualified chairs where that is an
advantage.[Official Report, Health and
Social Care Public Bill Committee, 8 January 2008; c. 56,
Q117.]
There may be cases where
it is not necessary to have a legally qualified chair, but what we are
trying to do, and what we will try to do on Report, is to think about
the matter and bring back something that will meet the concerns raised
by hon. Members and by Lady Justice Smith, without putting the new,
independent adjudicator in the position where it has to have a legally
qualified chair for every case.
Sandra
Gidley:
I may have misunderstood, but I was under the
impression that if fitness to practise was applied to someone with a
health concern they would be dealt with by a different panel to the one
dealing with someone who is bad. In that case, it would be fairly easy
to make a distinction between the two. It is not enough to have
somebody who is medically qualified. For example, a surgeon may have
little sympathy with mental health problems. Therefore, we need to
finesse some of the Ministers
arguments.
Mr.
Bradshaw:
In a way, the hon. Lady is making the
point for me. We need to retain an element of flexibility. Amendment
No. 204 would require all panel hearings to be chaired by somebody who
is legally qualified.
Jeremy
Wright:
The Minister has given us some examples of cases
in which medical expertise will be required. Will he accept that the
medical expertise could quite properly come from other members of the
panel and not just the chairman? What will be the case in all such
hearings is the necessity to understand the standard of proof issues
that have been raised. Will he also accept that that was Lady Justice
Smiths main reason for taking the view that a legally qualified
chairman would be necessary? That will be true in all cases, and not
just in the examples that the Minister has
given.
Mr.
Bradshaw:
I am not sure that the hon. Gentleman is right
in saying that in all cases there would have to be a legally qualified
chair. He ignores the fact that legal assessors would be available to
the panels. It is also worth bearing in mind that Lady Justice
Smiths recommendations were informed by a particular case,
which was very lengthy and complex. It would be unwise of the Committee
to ignore the fact that many of these cases are more straightforward.
As the GMC argues, its current system, in which it sometimes has
medically qualified chairs, works very well in some of the simpler,
less legally complex cases.
Mr.
O'Brien:
I recognise that the Minister has said that he
will go away and consider the matter. He said that he might be able to
bring some proposals forward on Report and we look forward to that.
However, the argument is quite significant. In the evidence sessions
and in Committee, we have had to focus on and think carefully about the
issue. We all recognise the seriousness of the matters that the fitness
to practise panels will have to deal with; there will be grades of
seriousness and grades of consequence. Ultimately we are talking about
the trust that we and our constituents have in the medical profession,
and the trust that the medical profession has in the
processwhether it will be dealt with properly and efficiently
and with the requisite understanding. As my hon. Friend the Member for
Rugby and Kenilworth rightly said in his intervention, there are things
that will be common to all the cases, such as the matter of
procedurein other words, a legal understanding of the way that
justice operates and, as Lady Justice Smith said, the need to ensure
that there is capacity to have the professional skill and capability to
be able to right a judgment.
If we go back
to my famous and beloved Venn diagrams, that would be the outer circle.
Instead of having another overlapping circle, there would be another
circle within that circle for cases that require medical expertise.
What we are discussing is where the default should lie. Should the
expectation be that there is always a legally qualified chair and the
rest should be done through advice from panel members and assessors,
including the medical profession; or should the default be that we
should not presume that we need the legal expertise or the
qualification because we will not always need traditional procedural
skills, notwithstanding the commitment to
training?
It
is clear that because we have sought to indicate that by picking up on
where things were already heading with the proposals for pilot, because
Lady Justice Smith gave some reasoned and cogent evidence and because
the Minister promised to return to this matter on Report, as I hope he
will, I could take the opportunity to withdraw the amendment. However,
I decline to do so. I
want to test the Committee so that it can be put on the record that we
at least held the Governments feet to the fire. Furthermore, we
look forward to hearing how the Minister will avoid a Division on the
matter on Report.
Question
put, That the amendment be
made:
The
Committee divided: Ayes 6, Noes
9.
Division
No.
8
]
Question
accordingly negatived.
11.45
am
Mr.
O'Brien:
I beg to move amendment No. 48, in
clause 93, page 46, line 14, at
end insert
(3A) Rules made
under subsection (3) may not require a lay or professional
majority.
(3B) An Order in
Council may not
(a)
amend subsection (3), or
(b)
make any provision that is inconsistent with subsection
(4)..
The
amendment would avoid a lay or professional majority on fitness to
practise panels. The Committee needs to be extremely careful that it
understands the distinction between lay and professional balance on the
council, which is a matter dealt with under schedule 8, and lay and
professional balance on fitness to practise panels, which is the issue
that we are contending with here. The amendment would keep a proper lay
and professional balance on fitness to practise panels, particularly
when the panel consists of more than three individuals, and would avoid
too large a majority either way. The Bill does not seem to provide that
guarantee. I would also be grateful if the Minister could give the
Committee an idea of how he envisages that point being addressed in
rules made, under subsections (2)(d) and (4), by the OHPA, and approved
by an order of the Privy
Council.
Mr.
Bradshaw:
We have three problems with the amendment.
First, it could preclude a simple majority decision by a panel;
secondly, it could artificially inflate the costs of any fitness to
practise hearing by requiring the recruitment of additional panellists
solely to maintain parity between lay and professional members, and,
thirdly, it should be noted that the rules of some of the regulators,
such as the General Optical Council, provide for lay majorities on
fitness to practise panels, which we do not think is necessarily a bad
thing.
Mr.
O'Brien:
I shall not press the point. It was not a
perfected amendment, but it made the point that we need to be careful
not to remove the necessary sense of parity. I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
93 ordered to stand part of the Bill.
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