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.
Amendment No.
225 seeks to achieve a similar aim with a different wording. I would
rather listen to the
arguments of the hon. Member for Eddisbury on the remaining amendments,
about some of which I was slightly curious about why he had tabled
them.
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 bodies...to
promote best
practice”—
in
professional
regulation—
“to
promote co-operation between regulatory bodies...to 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 functions...is 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.
| 
