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Lord Goodhart: My Lords, I have to confess that I am disappointed by the Minister's reply and her failure to accept the principle of fully independent monitoring. In the circumstances, this is not an amendment which I propose to take further and I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Anelay of St. Johns moved Amendment No. 2:

Page 3, line 27, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").

The noble Baroness said: My Lords, in moving Amendment No. 2, I shall, with the permission of the House, speak also to Amendment No. 3. These amendments were tabled by the noble and learned Lord, Lord Archer of Sandwell, in Committee and supported by my noble friend Lord Higgins. They could not be moved at that stage because we were all struck by a pre-emption which caught us all by surprise. I have explained to the noble and learned Lord, Lord Archer of Sandwell, that I am not trying to steal his very good ideas on this matter. I was aware that he was away last week and therefore might not be able to table these amendments. Because I supported them so strongly, I did not wish them to go by default.

I am concerned about the position of members of tribunals who are appointed for their medical expertise but who simultaneously receive payments from the Secretary of State for medical reports prepared in connection with the award of incapacity and disability benefits. Tribunals must not only be independent and impartial, as I firmly believe they are; it is also important that they are perceived to be so by all parties to appeals, most importantly by those appearing before them as appellants.

The number of those who are potentially involved in compromising the impartiality of the tribunal is, I believe, significant. Figures were released in March 1997 showing that 232 medical members of disability appeal tribunals are also approved by the Benefits Agency medical services to examine people in connection with disability living allowance or attendance allowance. Those figures were given in another place on 11th March 1997. Fees are paid by the Secretary of State to the doctors who carry out such examinations.

In February last year, of 24,401 examinations carried out in connection with DLA and AA cases, approximately 5 per cent. were allocated to doctors who

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also sit on DLA tribunals as members hearing appeals against the refusal of those same benefits. Details of those figures were given in another place on 18th March last year. In most cases the refusal of benefit will have been based on the medical examination itself.

A further 88 doctors simultaneously sit on disability appeal tribunals and perform work for the Benefits Agency on a fee-paid basis concerning incapacity benefit.

When an ordinary person appears before a tribunal as an appellant, it must seem to them self-evident that a doctor who is being paid by the DSS to carry out medical examinations on the basis of which benefit is then awarded should not at the same time sit on the very tribunal which has been set up to consider whether a decision by the DSS is correct. It is even more vital when that doctor is paid to carry out examinations in connection with the same benefit which is the subject of the appeal.

The practice of appointing to disability appeal tribunals those doctors who perform work for the Secretary of State in connection with DLA was recently accepted by a social security commissioner. However, I note that the president of the Independent Tribunal Service pointed out the controversial nature of that decision, which also has implications for the appointment of medical members to hear incapacity benefit appeals.

At present the argument is that a conflict of interest is only accepted if the doctor who is sitting on the tribunal comes across an appellant appearing before that same tribunal whom he or she had previously examined in connection with the claim for benefit actually under appeal. Indeed, that is a general rule covering all members of appeal tribunals. When I sat as a lay member of a tribunal that situation could arise. I would appear at a tribunal and only then discover that Mr. or Mrs. Smith or Mr. or Mrs. Brown who appeared before me were people whom I had advised in my capacity as a worker at the citizens' advice bureau. I would then withdraw. That same rule is applied to doctors. But the problem with that situation is that recognition of the appellant comes too late. They have prepared their case; they have prepared themselves for the trauma of appearing before a tribunal and only when they appear do they find that the case cannot be heard by one of the panel members. It may well be that the whole case is adjourned until another date.

I believe therefore that we need the amendment in order to be sure that doctors, as a group, do not have their credibility as effective members of appeal tribunals undermined. I beg to move.

3.30 p.m.

Lord Archer of Sandwell: My Lords, I am grateful to the noble Baroness, Lady Anelay, for tabling this amendment. It is true that we were not able to discuss this matter in Committee because of the procedural hiccup which none of us foresaw until the net had closed.

I will not attempt to repeat the argument stated so clearly by the noble Baroness. I agree that possibly the best example of the principle to which my amendments

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in Committee were directed is the example of the doctor who feels that he might be under pressure if he were to displease the Department of Health. That is a genuine problem which I hope my noble friend will consider.

However, I hope the noble Baroness, Lady Anelay, will forgive me if I say that I cannot go with her across the whole width of her amendment. She seeks to disqualify anyone in the employment of the Crown from being a member of a tribunal. A number of people who are in the employment of the Crown are effective and dedicated members of tribunals and do an extremely good job. They may face no danger of a conflict of interest. For example, a scientist working in the Crown's research laboratories would not necessarily have any reason to fear a conflict of interest in this kind of situation.

The amendment goes rather wider than the initiative it seeks to meet. Having said that, I will listen with great care to the reply of my noble friend because the narrower issue is one which should be addressed.

Lord Goodhart: My Lords, I rise to support the amendment and will do so briefly because all the points that could properly be made on it have been made already by the noble Baroness, Lady Anelay, and the noble and learned Lord, Lord Archer.

The present situation breaches the vital principle that a tribunal should be seen to be independent and impartial. A doctor who is employed by the DSS on other matters relating to disability may face a conflict of interest. I accept also the qualifications of the noble and learned Lord, Lord Archer, that that does not apply across the board and that there are other holders of government posts who could properly sit as members of an appeal tribunal.

The primary point is that made by the noble Baroness. It is an important one and I hope that the Government will see fit to accept the amendment.

Lord Borrie: My Lords, I feel extremely doubtful about the amendment, not only for the reasons given by my noble and learned friend Lord Archer of Sandwell--namely, that the amendment is exceedingly broad--but also on the basis that the noble Baroness, Lady Anelay, tabled the amendment in a way which concerns the credibility of medical practitioners.

As the noble Baroness explained, we are not talking here about a case where the medical practitioner is involved in examining patient A and then finds himself or herself sitting on the appeal tribunal concerning patient A. In that situation there is immediate conflict and there would be a standing down of the medical practitioner involved. But the scope of the amendment means that several hundred--I believe the number was 237--doctors who are currently employed to examine people for the DSS and act also as medical members of appeal tribunals would have to be barred. That is a drastic decision to take. It would deprive a great many people with experience in the field of examining people applying for benefit under the social security system of membership of appeal tribunals.

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The noble Baroness referred to the credibility of medical practitioners. But credibility also involves integrity. The noble Baroness appears to be questioning the professional integrity of medical practitioners by suggesting that if they are employed by the Crown to examine individuals on behalf of the department on one day they are incapable of sitting on another day as a member of a tribunal hearing decisions about different individuals.

Lawyers--two lawyers have already spoken broadly in favour of the amendment--particularly barristers but nowadays solicitors as well, may act in a judicial capacity on a number of days a month or a year in fields in which their expertise arises, and continue to practise on behalf of a plaintiff or defendant in similar cases. Their professional integrity is not questioned. Indeed, it is a feature of their professional integrity that they are capable of acting in a judicially impartial capacity on some days of the year and on other days of being the most partisan on behalf of an individual and being employed by government departments to be partisan advocates.

Therefore, for practical reasons of depriving the tribunal service of a large number of valuable members, and for reasons concerned with maintaining professional integrity, the amendment is not a suitable one for this House to pass.

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