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Baroness Finlay of Llandaff: My Lords, I rise to speak in support of the amendment and Amendment No. 74, which is grouped with it.
The Minister's response to the noble Earl, Lord Howe, in relation to Amendment No. 66 in some ways allayed some of my concerns, but not fully. I shall not reiterate the arguments that have already been advanced by the noble Earl.
Subsections (11) and (12) caused me concern. They appear to be counter to the spirit of collaboration and co-operation that was so starkly called for in Professor Kennedy's report. No one should forget that it was a doctor who, against great pressure to the contrary, blew the whistle and exposed the children's cardiac surgery services in Bristol.
A health professions regulator would be ill-advised to ignore willy-nilly a direction coming from the council and would face stringent sanctions for so doing. However, there may be a situation, as the noble Earl, Lord Howe, outlined, in which a single regulator feels morally and ethically bound to refuse to toe the line. It is the ability of a professional body to speak out that safeguards patient autonomy. I shall explain and expand on that a little.
Some clinical decisions are extremely complex—so complex that they are ill understood by people outside the specialty and that specific clinical situation. They demand an in-depth understanding of the subject and may, in the interests of a patient or a group of patients, be counter to the vested professional interests of other healthcare professionals. The council is being established to try to avoid clashes of interest, to build teams and to foster collaboration. However, at the end of the day, any one profession must be able to stand up to the considered, competent opinion of its constituent members.
It is, as has been outlined, the regulatory bodies that make the rules and regulations about professional standards and ethics that enable an individual to be registered for that profession. It is the regulatory bodies that can suspend or strike off a professional from the body's register, ending the person's work in an instant.
If the professions are not respected and not trusted to consider and act responsibly, the council seems to be able, at the end of the day, to subsume the very nature of a professional approach on behalf of patients. Make no mistake, my Lords—I am not arguing for entrenched conservatism and vested interests; quite the opposite. The lone voice of one profession may be the best safeguard for the vulnerable patient, who may be weakened by disease and effectively disenfranchised
by debility or infirmity. If the provisions remain in the Bill, how will a regulatory body respond to a direction that it feels is unethical or jeopardises patients?
Lord Hunt of Kings Heath: My Lords, I say at once that I agree with the noble Baroness and the noble Earl, Lord Howe, that this is a very sensitive issue and that we need to get the balance right between the integrity of the individual regulatory bodies, the professions and the wider public interest. Kennedy was absolutely clear that the council should have powers to ensure that it is able to carry out its functions effectively. He said:
- "We believe that the council should have statutory powers to require the various bodies to act in the interests of patients and conform to the principles of good regulation".
I very much agree with the noble Earl, Lord Howe, in hoping that the direction never has to be used. We all hope that the new arrangements will operate on the basis of sensible discussion and agreement. I am sure that in most cases it will do so. However, we believe—this is based on the original analysis of Kennedy—that the council has to have the ability to issue a direction only in those cases in which the Privy Council is involved in the rule-making. The amendments to which we agreed in Committee were extremely significant in ensuring that such a direction could be issued only through an affirmative vote in both Houses.
As the noble Earl, Lord Howe, generously acknowledged, we had intense discussions with the regulatory bodies over several months. They clearly stated that they are satisfied that we have now got the balance right.
I suspect that the noble Baroness, Lady Finlay, asked a rhetorical question about a disagreement between the regulatory body and the council. The strict interpretation of the position is that if a regulatory body refused to comply with a direction, which would have been endorsed by Parliament, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the courts. That is what would happen in the event of such a disagreement.
On the question of the noble Earl, Lord Howe, I have inquired into the reason why the wording needs to be as it is. That goes back to the fact that the direction would be issued not by a Minister but by the council. An affirmative order, having progressed through both Houses of Parliament, would do no more than to set the date for the coming into force of the direction. Clearly, the direction's wording would be available to both Houses and would be the subject of debate. However, the resolution would relate to the date of coming into force of the direction. There would be nothing in the order that would require the directions to be complied with. That is why we need in the Bill a positive obligation on regulatory bodies to comply.
7.30 p.m.
Earl Howe: My Lords, I thank the Minister for his reply. He has just made a very nice legal point and, of course, I suppose that what he says is strictly correct. However, I should have thought that for Parliament to set the date on which directions come into force would be nothing more nor less than Parliament giving those directions legal force from that date. But clearly that is not so.
Nevertheless, I do not propose to argue from a basis of ignorance what is clearly a nice legal point. The Minister does not speak from a basis of ignorance. He has been very helpful generally on this amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 26 [Complaints about regulatory bodies]:
Baroness Noakes moved Amendment No. 75:
- Page 33, line 9, leave out paragraph (a).
The noble Baroness said: My Lords, in moving Amendment No. 75, I shall speak also to Amendments Nos. 76 to 82, which stand in my name in this group.
These amendments concern Clause 26, which allows the Secretary of State to make regulations in respect of the council for the regulation of healthcare professionals, setting up a complaints scheme in relation to the regulatory bodies. The regulation-making power in Clause 26(1) is wide, and subsection (2) sets out a number of areas which regulations under these powers could cover.
The noble Baroness, Lady Finlay, will speak in a moment to her Amendment No. 83, which seeks to leave out Clause 26. These powers are very extensive and there are legitimate questions about whether the council should be involved in complaints at all. Amendments Nos. 75 to 82, however, take the basic scheme as read but probe the particular nature of the regulation-making powers.
Amendment No. 75 seeks to take out paragraph (a), which allows the Secretary of State to prescribe who is entitled to complain. I find that extraordinary. The implication is that certain persons or types of person will not be allowed to complain. I struggle to think of any complaints scheme that rules out certain complaints because of their source.
Paragraph (b) allows the Secretary of State to say that certain types of complaint must be ignored. Under paragraph (c) he can say what is excluded from investigation. Under paragraph (d) he can set out requirements that complainants must follow. Under paragraph (e) he can tell the council what procedure it should follow in investigating complaints. Under paragraph (i) he can even decide about making payments for investigations.
Perhaps of most significance in Clause 26(2) is paragraph (g), which gives the Secretary of State power to decide about the confidentiality of information acquired during an investigation. That could clash with the ethical guidance from one of the regulatory bodies.
Amendments Nos. 75 to 81 are probing amendments, either deleting or amending the paragraphs to which I have referred. Why does the Secretary of State need to take these powers? Why cannot the matters be left to the council? The Government are setting up the council for the regulation of healthcare professionals with carefully constructed membership. So why do the Government need to micro-manage the complaints procedure by specifying in the finest detail the "who", "what" and "how" of complaints investigation? That is why Amendment No. 82 seeks to introduce a new subsection in Clause 26 stating that the council should adopt such procedures as it thinks fit. I beg to move.
Baroness Finlay of Llandaff: My Lords, I wish to speak to Amendment No. 83, which goes slightly further than the amendments to which the noble Baroness, Lady Noakes, has already spoken.
Clause 26 examines complaints about regulatory bodies. Currently each regulatory body has a complaints procedure and receives complaints not only about the decisions that it makes but also about the way that it makes those decisions. For example, in the year 2000, the GMC received 4,470 complaints against doctors on its register. An additional 125 complaints were re-opened from the preceding years. Explicit standards are set for the timing of the screening and investigation of proceedings in relation to the handling of complaints. The figures relating to physiotherapists are very different but provide a useful contrast. In the same year, the Chartered Society of Physiotherapy received 37 complaints.
The problem for aggrieved relatives and patients is that they may feel very angry and seek revenge or redress. Certainly, for those who are bereaved that is very understandable. Sadly, errors of judgment occur and will continue to occur whenever the assessment of risk, however well thought through, balances the probabilities for and against a management strategy and gets it wrong in clinical care. Hindsight is a marvellous tool: if only we had such a perfect ability to predict what will happen.
Those who feel angry and bitter will often feel deeply unhappy if the professional has not been struck off, however inappropriate that might be. They will complain against the relevant body. Their letter may outline perceived irregularities in the process, although their complaint really concerns the outcome of the process. Looking back at the complaints which were brought forward in the year 2000, one could estimate that in approximately 10 per cent of cases dissatisfaction would be expressed about the process by those who brought the complaints. However, that is almost always resolved when the procedure is clarified.
If such complaints went to a body other than the regulator, such as the council, their investigation would become very time-consuming and burdensome and certainly extremely expensive. The process would need to be adequately resourced and would require trained staff. When one considers the figures in relation to the GMC and the physiotherapists, one is
possibly talking about almost 500 complaints in one year. The process will certainly require extensive investigation.An alternative to this clause would be to extend the Health Service Commissioner's role to include the health regulators. The current remit of the commissioner covers NHS providers. However, the skills and procedures have been established and the remit could possibly be widened. It would have the advantage for the person bringing the complaint of being an external, completely neutral process, far removed from any regulators. It would avoid any potential conflict of interest for the council in relation to its role in co-ordinating the different regulators, and it would ensure consistency in standards.
It would also ensure that the complainants were able to go to a completely independent body, and it would avoid the perception of professions sticking together or closing ranks—an allegation which at present is often brought against professions by those who complain. It is in that spirit that my amendment proposes that the clause should be deleted and the whole complaints procedure re-thought.
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