Health and Social Care Bill

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Clause 94

Lists of persons eligible for membership of fitness to practise panels
Question proposed, That the clause stand part of the Bill.
Mr. O'Brien: We tabled an amendment on the clause, but it was not selected. I shall not stray from the clause stand part debate, but I would be grateful if the Minister could untangle the circularity that caused much concern and, indeed, mirth, during the oral evidence session with Lady Justice Smith. Under clause 93, a chair must be selected from the lay or professionally qualified members, and additional members must be selected from the professionally qualified list, which is defined as
“the list of persons eligible to serve as professionally qualified members provided for by section 94(1)(b)”.
As Lady Justice Smith rightly said, anybody examining the Bill moves to clause 94(1)(b), which states that those people are
“persons eligible to serve as professionally qualified members”.
That has a certain familiarity about it. As she so accurately said:
“Around we go in a circle.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
I had therefore expected a Government amendment so that we could get rid of that circularity. The last thing that we want to do is pass any law that will be held up as a laughing stock by those who have to operate it.
Mr. Bradshaw: I have been advised that clause 93 refers to the professionally qualified members list as being those eligible to serve as provided for in clause 94. Clause 94(3) allows for rules to specify the requirements that a person must meet to be on that list, so the definition is not circular and we do not believe that a change is needed.
Question put and agreed to.
Clause 94 ordered to stand part of the Bill.
Clause 95 ordered to stand part of the Bill.

Clause 96

Legal assessors
Question proposed, That the clause stand part of the Bill.
Sandra Gidley: I want to pose a few questions to the Minister on legal assessors, which bring us back to the debate that we had on amendment No. 204. I am curious about what assessment has been made of the cost and effectiveness of legal assessors and how it would compare with a system in which there was automatically a legally appointed chair. Bearing in mind the arguments about time made by Lady Justice Smith, I wonder how the decision to have legal assessors has been arrived at. Some clarity about costs and effectiveness would be helpful in informing our decision, because there is no doubt that we shall return to the matter on Report.
Mr. O'Brien: I, too, would be interested in answers to those questions. Also, following our debate on amendment No. 204 to clause 93, which to my great surprise and disappointment the Government did not feel minded to accept, we know that the Government do not accept that there will be a legally qualified chair. Given that, we need to understand whether legal assessors will be on the fitness to practise panels for their whole duration, or whether they will be ad hoc, popping in and out. That is significant in deciding what we might return to on Report, so I should like to hear the Minister’s views on the importance of access to legal advice and qualified, skilled people.
Mr. Bradshaw: I am grateful to the hon. Lady for raising the matter. I did not make an argument about costs in our earlier debate on amendment No. 204, which would have required all panels to have a legally qualified chair. To have that requirement and a requirement for legal assessors to be available would be unnecessarily duplicative and add costs. I think that that was one of the General Medical Council’s concerns.
In response to the hon. Lady’s question, we have not assessed the current or future costs of the legal assessors system, but we shall be doing so along with our assessment of the costs of a requirement to have legally qualified chairs. I hope to be able to say a little more about that on Report.
Question put and agreed to.
Clause 96 ordered to stand part of the Bill.
Clause 97 ordered to stand part of the Bill.

Clause 98

Procedural rules
Question proposed, That the clause stand part of the Bill.
Sandra Gidley: This clause specifies when a hearing will be made in private. Concerns were raised by the British Medical Association about the new provisions because health cases are currently heard in private. Will the Minister clarify under which circumstances a hearing may be held in private and whether that would be for health cases only or whether there would be a trigger point? I assume that that has to be decided case by case by somebody: who would make that decision and what framework would be available for them following that decision? While we all believe that openness and clarity are important in such cases, there are occasions where that has to be balanced against sensitive information that may be relevant to the individual. I am not clear how that balance will be achieved.
Mr. Bradshaw: We expect the future arrangements to replicate the current ones, which, as the hon. Lady is probably aware, provide for hearings to be held in private under particular circumstances, such as for witness evidence to be protected, or for special arrangements to be put into place due to age or vulnerability. In formulating those rules, the OHPA will, of course, be informed by the current position and will to have to pay careful attention to human rights. It will also have to consult widely, including with the existing regulators on its proposals on that very important area.
Question put and agreed to.
Clause 98 ordered to stand part of the Bill.
Clauses 99 and 100 ordered to stand part of the Bill.

Clause 101

Duty to consult
Sandra Gidley: I beg to move amendment No. 238, in clause 101, page 50, line 7, after ‘seek’, insert ‘, and take account of,’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 225, in clause 102, page 50, line 27, at end insert
‘, and respond to the views of’.
No. 206, in clause 102, page 50, line 37, at end insert—
‘(3A) Before making rules the OHPA must publish a response to its consultation as set out in subsection (3).’.
No. 227, in clause 102, page 50, line 37, at end insert—
‘(3A) Before making rules, the OHPA shall respond to any representations made to them—
(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and
(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.
No. 226, in clause 102, page 50, line 39, at end insert—
‘(4A) Before approving rules, the Privy Council must note the representations received by the OHPA during the consultation as set out in subsection (3).’.
No. 228, in clause 102, page 50, line 42, at end insert—
‘( ) Before approving rules the Privy Council shall respond to any representations made to them—
(a) if the rules affect the profession regulated by the Medical Act 1983, by the General Medical Council, and
(b) if the rules affect the professional regulated by the Opticians Act 1989, by the General Optical Council.’.
Sandra Gidley: Amendment No. 238 is simple, because the clause as currently drafted, states the OHPA must
“from time to time seek the views of”
various bodies. While that is fine, I want to insert the words “and take account of”, to strengthen the clause. There are too many consultations in which the people who are consulted feel ignored. The amendment strengthens the position of the consultees.
Mr. O'Brien: I am slightly concerned when the hon. Member for Romsey says that she is curious about some of the drafted amendments: it sounds as if she is limbering up for not supporting us in any vote. I am sure that that is not true and that I will be able to persuade her. The clause as drafted makes the OHPA seek the views of the groups mentioned, and as the hon. Lady mentioned, her amendment makes the OHPA take account of such views.
Amendments Nos. 225, 206, 227, 226 and 228, which we have tabled, all amend clause 102. They seek to strengthen the consultation process by ensuring a full and public response from the OHPA to any consultation on rule changes. The amendments would require the published response to detail where specific views have been expressed by the Council for Healthcare Regulatory Excellence or the regulatory bodies, and that would also strengthen transparency in decision making by the OHPA. Amendments Nos. 226 and 228 specifically relate to the role of the Privy Council—this may be the point that the hon. Lady sought to have elucidated—given that it has to approve the rules because of the way that we have a trans-internal national debate.
Sandra Gidley: My curiosity was piqued by the fact that I have a hazy understanding of what the Privy Council does. In my own regulatory body, I am frequently told that we must do things because the Privy Council has told us to. I have spoken to a number of Privy Councillors who say, “I don’t know anything about that.” I have looked on the Privy Council website and it is very obscure as to who actually advises the Privy Council. It seems to be a back-door method by which the Department of Health can impose its will. If the measure is aimed at greater clarity in Privy Council decision making, I fully welcome it. I have had some difficulty in tracking the process of Privy Council decision making because the decisions do not seem open to any public scrutiny.
Mr. O'Brien: It would stray beyond the scope of the amendment to give even my extraordinarily limited understanding of the workings of the Privy Council, other than to recognise that, as I understand, “Privy” is not intended to signify that it should be withheld from scrutiny and accountability when done in the names of us all. It is a council whose first and primary loyalty is its adherence to the monarch. Because of our constitutional arrangements, the sovereign powers of law making are in Parliament rather than with the monarch, and it is effectively a form of delegated administrative implementation. Therefore, the Privy Council always acts upon constrained and tight legal advice. That is as far as I dare to take it, without getting into a debate.
The amendments were deliberately designed—and I think that this is the satisfaction that the hon. Lady seeks—to require the Privy Council to respond to any representations made by the two regulatory bodies, whose registrants are covered by the OHPA. If the Privy Council cannot give such a public statement, through this it would have the power to direct others to make statements on its behalf, or indeed through the Department. The main point is that there is transparency and accountability through the publication of these matters.
The amendments will help to ensure confidence in the new body, by adding much greater transparency to its decision making process for patients, the public and indeed doctors. It will ensure that there is clarity about any rule changes and those reasons will, I think, be critical—I dare say that that is not a point of contention. It is also important for the OHPA to ensure that it fully considers the views of the regulatory bodies that have long-standing experience of dealing with adjudication in fitness to practise cases, and have the primary interest in the effective application of their own standards.
Mr. Bradshaw: This, and the next couple of clauses deal with accountability, consultation and patient and public involvement. It may be helpful if from the outset I remind the Committee about the extent of patient and public involvement in the OHPA.
There will be lay members on its board and, under clause 93, there will always be a lay member on its hearing panels. Under clause 100, the OHPA will be required to keep the public informed of its activities and, under clause 101, it will have to consult. Under clause 102, it will have to consult on drafts of its rules—specifically with bodies that appear to represent the interests of patients and other persons whom it considers appropriate, including regulatory bodies.
The amendments seek to address those matters in a number of specific ways. I stress that, as an executive non-departmental public body, the OHPA will be expected to follow best practice on consultation as set out in the Government’s code of practice. Criterion 4 of that code states that feedback should be given
“regarding the responses received and how the consultation process influenced the policy.”
Furthermore, specific statements within the criterion cover how responses should be analysed with particular attention given to representative bodies. The consultation should state when and where the summary responses will be published, an explanation should be given of how to respond to specific questions, and information should be provided on themes not covered by the question. The code of practice has proved popular with stakeholder organisations who regularly participate in consultations. The code has also been used as a model by other public sector bodies in the UK.
Amendments Nos. 226 and 228 place a requirement on the Privy Council to note representations made to the OHPA by the relevant regulatory bodies. I have already mentioned that under clause 202 there is a requirement for the OHPA to consult with other bodies, including regulatory bodies. The difficulty I have with the amendment goes back to something I said earlier: it moves away from the OHPA being independent from the professions and the regulatory bodies who use its services. The amendment does not suggest the independence that we all want for the OHPA, particularly if further representations are allowed. In addition, by providing the regulators with a secondary pathway to make representations on the rules, the consultation process is undermined because it would exclude other parties specified in legislation and others who may have responded. Any modification to the rules will be on the basis of discussions between the OHPA and the Privy Council.
In response to a question from the hon. Lady, the Privy Council plays a role in respect of certain statutory regulatory bodies and other bodies incorporated by royal charter that cover a number of professions. It also plays a role in the world of higher education. I learned something new in this briefing because in my day the President of the Council was also the Leader of the House. Now, apparently the President of the Council is Baroness Ashton.
Mr. O'Brien: There are still a number of concerns. The Minister suggested that the amendments would take us in the opposite direction to the independence that, as he said, we all want to achieve for the OHPA. My concern is that he is not necessarily seeking to achieve the independence that I have in mind, so if the hon. Member for Romsey does not press her amendment to a vote, I seek leave to have our amendment No. 227, as an indicator, put to the vote separately.
Sandra Gidley: I take on board the Minister’s comments, which highlight the ways in which the OHPA is accountable, but I still have concerns so I am happy to support amendment No. 227.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chairman: With this, we may discuss new clause 12—Duty of co-operation with council for healthcare regulatory excellence
‘The OHPA shall have a duty to co-ordinate its activities, and share information, with the Council for Healthcare Regulatory Excellence.’
Sandra Gidley: New clause 12 is a simple motion, which would require co-ordination between the OHPA and the CHRE. In practice, I am fairly sure that the bodies would communicate anyway, but the thrust of regulation appears to be to try to streamline and unify the mode and style of regulation. In the briefing that the CHRE provided to some of us, it said that it expected the procedures of the new body and those of the regulators to be harmonised over time, where appropriate, so in the interests of overall best practice, it would be helpful to impose a duty on both the OHPA and the CHRE to ensure that the whole matter is joined up and that any changes are made with the maximum exchange of information.
12 noon
Mr. Bradshaw: It seems that the intention of the motion is to extend the function of the CHRE to cover the performance of the OHPA, but it is based on the misapprehension that the OHPA is a regulatory body and, therefore, subject to oversight by the CHRE. The OHPA is an independent body with statutory functions to adjudicate on matters of fitness to practise referred to by the GMC and, at a later date, the GOC, which will provide the public and the professions with the reassurance that was called for as part of the Shipman inquiry. The CHRE’s functions, which are set out in the National Health Service Reform and Health Care Professions Act 2002, are
“to promote the interests of patients and other members of the public in relation to the performance of their functions by the regulatory promote best practice”—
in professional regulation—
“to promote co-operation between regulatory formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to”
such principles. The Bill states:
“The main objective of the Council”—
the CHRE—
“in exercising its to promote the health, safety and well-being of patients and other members of the public.”
The CHRE does not have a remit to ensure that other bodies co-ordinate their activities with it, and as such, it would not be appropriate to impose such a duty on the OHPA. However, clause 102 states:
“Before making rules the OHPA must consult”
with a range of interested parties, including the CHRE, because it has oversight of matters relating to regulators, bodies representing the interests of patients and any other persons whom the OHPA considers appropriate.
We feel that those provisions are sufficient to ensure that the OHPA consults the CHRE, and in that light, I urge the hon. Lady to withdraw the motion.
Sandra Gidley: The OHPA plans to oversee only the medical and optical professions, and in time it would seem logical to move other professions to a similar system. It seems strange to have some professions regulated in one way and others in another. As the CHRE has oversight and frequently brings the different regulatory bodies together, the new clause would have created a useful dialogue. We will review the motion.
Question put and agreed to.
Clause 101 ordered to stand part of the Bill.
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