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Baroness Northover: I thank the Minister for that reply, and I am only too well aware that there are various cans of worms in this particular sphere. I shall certainly examine his comments. I should emphasise, however, that underlying all our amendments is our public interest argument of accountability to Parliament. Some of the changes we suggest in some of our amendments have to be posited on that basis. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 162 to 164 not moved.]
Clause 24 [Powers and duties of the Council: general]
[Amendments Nos. 164A to 169 not moved.]
Earl Howe moved Amendment No. 170:
- Page 31, line 41, leave out from second "profession" to "which" in line 42.
The noble Lord said: Amendment No. 170 draws attention to what is on the face of things a drafting oddity. Clause 24(12) states that
- "'health care profession'" means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals".
That is an extraordinarily wide compass. It would be hard to think of any profession which is not at some time, at least in part, concerned with the physical or mental health of individuals. Architects build hospitals; bankers lend money to build hospitals; solicitors act for the sick. Even vets are concerned with the physical and mental health of individuals—namely, themselves.
The Government's intentions may be clear, but I ask whether there might not be a tighter form of words which encapsulates more precisely the territory that the new council will occupy. The existing professions that are to come under the jurisdiction of the new council can surely be listed by reference to the regulatory bodies that govern them. If in the indefinite future there are to be other professions admitted under the same umbrella—there may well be, of course—we
already have an order-making power in the clause which will ensure at least some parliamentary control over what professions can be added to the list.I do not understand why in subsection (12) there needs to be such a catch-all type of definition which appears to open the door unnecessarily wide. I beg to move.
Lord Hunt of Kings Heath: I hope that I can clear up the matter for the noble Earl, Lord Howe. The definition was used in the Health Act 1999, having in view the profession of psychology whose leaders wanted the door to be open to statutory regulation, although most do not practise in the health sector.
The clause uses the definition where Ministers, including the devolved Administrations, can seek the council's advice on any matter connected with a healthcare profession. If the definition is narrower, the list of professions on which the council can advise us is reduced. The problem with that is that the narrow definition would exclude many groups who aspire to statutory regulation in the next few years. As the noble Earl will recall, about a year or so ago we debated with Lord Alderdice in his psychotherapy Bill. There are other examples including psychologists, psychotherapists, operating department practitioners, perfusionists and physiological measurement technicians, all of whom have expressed the wish to be regulated at some time in the future.
There is nothing more sinister than that. The wide definition is simply to ensure that, if at any time in the future we wished to seek advice on professions to be regulated, it would be straightforward to do so.
Earl Howe: I am grateful to the Minister for that explanation and beg leave to withdraw the amendment.
[Amendment No. 171 not moved.]
Clause 25 [Regulatory bodies and the Council]:
[Amendments Nos. 172 and 173 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 174:
- Page 32, line 2, leave out "direct" and insert "give directions requiring"
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 175 to 179:
- Page 32, line 5, leave out "so direct" and insert "give such directions"
- Page 32, line 7, at end insert—
The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 175 to 179 en bloc. I beg to move.
On Question, amendments agreed to.
Baroness Northover moved Amendment No. 179A:
The noble Baroness said: We seek assurance through Amendment No. 179A that the level of proof expected to be obtained in cases against health professionals will remain that of criminal rather than civil proof. As Members of the Committee will know, in civil cases the claimant has to prove his or her case on the balance of probabilities. In a criminal case the prosecution has to prove its case beyond reasonable doubt.
Given the importance of these kinds of cases, the criminal standard is surely appropriate if a person's right to practise is to be removed. That does not remove the right to apply sanctions to people for misconduct found on the balance of probabilities. I trust the Minister will be able to reassure me on this point. I beg to move.
Lord Filkin: Amendment No. 179A is designed to prevent a direction by the council from requiring a regulator to change its rules to move away from the criminal standard of proof; that is, the need to prove, for example, misconduct beyond reasonable doubt before taking action affecting someone's registration.
In fact the Bill does not alter the burden of proof; it is silent on that. Nor does legislation specify what standard should be adopted by regulatory bodies in disciplinary cases. That is a matter of case law rather than statute.
I appreciate that some professionals might be concerned at the possibility of a change to the burden of proof. But that is not something the Government are seeking and I have no reason to believe that it will be something the new council raises. Does that imply, as the amendment seems to, that we should use the Bill to make it impossible for a regulator ever to change the burden of proof? I suggest not. For example, the GMC's current proposals to reform its fitness to practise procedures would allow it to close a case with a formal warning or advice to a registrant rather than deregistration based on a finding on the balance of probabilities, as would be the case in many other situations where a case of misconduct which did not lead to deregistration or dismissal might operate.
Therefore, for some kinds of action it is possible that the civil burden of proof may be a live issue. In the unlikely event that the council wished to oblige some regulators to follow that route, I remind Members of the Committee that we have now tabled amendments to the Bill so that the direction would only have effect after both Houses of Parliament had approved an order setting a date for it to come into force. Moreover the council would have to prove that any such move was desirable for the protection of the public, which is the standard that the Bill applies. It would also have to convince Parliament of that. For those reasons I hope that the noble Baroness accepts that the amendment is unnecessary.
"(3A) The Council must send a copy of any such directions to the relevant authority.
(3B) The relevant authority is the Secretary of State or, if the regulatory body in question is the Pharmaceutical Society of Northern Ireland, the Department of Health, Social Services and Public Safety there.
(3C) The directions do not come into force until the date specified in an order made by the relevant authority.
(3D) The Secretary of State must lay before both Houses of Parliament, or (as the case may be) the Department of Health, Social Services and Public Safety must lay before the Northern Ireland Assembly, a draft of an order—
(a) setting out any directions he or it receives pursuant to subsection (3A), and
(b) specifying the date on which the directions are to come into force.
(3E) Subsections (3A) to (3D) apply also to—
(a) directions varying earlier directions, and
(b) directions revoking earlier directions, and given after—
(i) both Houses of Parliament have resolved to approve the draft order specifying the date on which the earlier directions are to come into force, or (as the case may be)
(ii) the Northern Ireland Assembly has done so.
(3F) Subsections (3A) and (3B) apply also to directions—
(a) revoking earlier directions, but
(b) which do not fall within subsection (3E)(b),
but subsections (3C) and (3D) do not apply to such directions.
(3G) If the Council gives directions which fall within subsection (3F), the earlier directions which those directions revoke shall be treated as if subsections (3C) and (3D) had never applied to them, and as never in force."
Page 32, line 8, at end insert "which have come into force and have not been revoked"
Page 32, line 14, leave out "directions given" and insert "the giving of directions"
Page 32, line 16, leave out "it directions" and insert "directions relating to it"
Page 32, line 19, at end insert—
"(9) Cases brought against clinicians will continue to be heard using the criminal burden of proof."
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