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As noble Lords know, in recent years there have been a number of high-profile inquiries, such as the Shipman inquiry, into doctors who have harmed their patients. These inquiries have highlighted serious failings in the system of professional regulation and undermined the confidence of patients and professionals in the existing system. The Government have looked carefully at the recommendations of those inquiries, which have informed how professional regulation for all health and social care professionals should and could be modernised and improved more generally. Consultation resulted in a White Paper, published in February last year. The Bill carries forward the primary legislative elements of that White Paper. Before we go into detail on the measures in Committee, I emphasise that they are only part of a wider reform programme.

The amendments spoken to by the noble Earl—Amendments Nos. 117, 138, 154, 157 and 160—deal with a number of matters raised in the eighth report of the Joint Committee on Human Rights, which were tabled by the JCHR on Report in the other place and debated at that point.

The Government recognise the need to improve human rights training and to embed human rights in the training and induction programmes of all staff in health and social care. The Joint Committee set us the task of reporting at the Committee stage in this House on what progress we are making, and I hope that I will be able to do so. As the Joint Committee acknowledges in its report, The Human Rights of Older People in Healthcare, the department has taken steps to address these issues. We have published a

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report entitled Human Rights in Healthcare—A Framework for Local Action and we have undertaken pilots with five trusts. The pilots will be independently evaluated and, after that assessment, we will decide how to take recommendations forward.

The Government agree that the regulatory bodies responsible for the basic education curricula and codes of professional ethics should consider how best to ensure that healthcare professionals understand their responsibilities. We have set up seven expert working groups to advise on the implementation of the White Paper, Trust, Assurance and Safety, and we expect two of those working groups, the Medical Education and Revalidation Working Group and the Non-Medical Revalidation Working Group, to look at this important area.

In preparation for that major piece of work, we have already written to key stakeholders, including the Council for Healthcare Regulatory Excellence, the health regulatory bodies, the strategic health authority education commissioners, Universities UK, the Council of Deans of UK University Faculties for Nursing and Health Professions and the Medical Schools Council to seek their advice on how best to take forward this agenda.

Of course, in looking at what more needs to be done, it is important to recognise the good things that are already happening. Health and social care professionals currently receive training on human rights as part of their academic studies. Regulatory bodies already include references to human rights issues in their ethical guidance. For example, the framework for undergraduate education of dentists refers to the Human Rights Act, and the document Standards for Dental Professionals has a section on—

The Earl of Onslow: May I interrupt the Minister? That rather goes against the impression that I got—that we got—in the hearing; that the professional bodies were not aware of it. The cliché “twixt cup and lip” immediately leaps to mind. Something does not seem to be working quite right there. That is why we want it in the Bill.

Baroness Thornton: We looked at the last report where the committee expressed its dissatisfaction with the response made by the other place and we have been taking action to push bodies that we think need to consider this. I have given the example of dentists because they seem to have been active in this area, and their document Standards for Dental Professionalshas a section on patient dignity and choices which addresses human rights issues. That is the good practice we need to build on.

We feel that, in light of the actions that we are already taking overall to improve human rights awareness and the training that healthcare professionals already receive, the amendments are not required. There are also specific reasons why we feel that each individual amendment is not needed, which I will now set out.

Amendment No. 117 imposes a requirement on the OHPA to ensure that it has regard to the desirability of improving the awareness of and training in human rights issues among its members. However, as a public

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body, the OHPA will already be bound by the Human Rights Act. In addition, the chair of the OHPA is required by the Bill to be legally qualified, which will ensure that on the board of the OHPA there is a strong understanding of its legal duties in relation to human rights.

Clause 97 also requires the OHPA to provide appropriate training to its panellists, which will of course include training around human rights. In relation to the specific intentions set out in the JCHR report, OHPA will not actually deal with qualifications, relicensing or accreditation; its only remit is to ensure that fitness to practise cases are determined fairly.

Amendment No. 138 would require CHRE to promote the human rights of patients and the public. However, the function of CHRE is to promote the health, safety and well-being of patients; this already fundamentally encompasses promoting human rights. In promoting, for example, the well-being of patients, CHRE will of course be seeking to ensure that convention values such as the dignity of the patient are respected. Like the OHPA, CHRE is also a public authority and as such must act in accordance with human rights under the European convention.

Amendment No. 154 seeks to add,

to the list of examples in paragraph 2 of Schedule 9 of the kinds of regulations that can be made under Clause 118. This is unnecessary. The list gives examples of the types of areas which may be covered, but is not exclusive. Therefore, regulations could already make provision for human rights training and education—and training is already in the list of examples in the Bill.

Amendment No. 157 imposes a requirement on the Secretary of State and Welsh Ministers to make regulations about awareness and training in human rights issues, under the power to modify the functions of the General Social Care Council and the Care Council for Wales that relate to the education and training of approved mental health professionals. Again, this amendment is not necessary as both councils are public bodies and as such have to comply with the Human Rights Act.

I have set out the specific reasons why these amendments are not necessary, but I hope that noble Lords will also consider these arguments in light of the overall steps we are taking to improve human rights awareness across the board, which I began by detailing. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

5.30 pm

The Earl of Onslow: I think that I am totally satisfied by that. I will probably get frightful stick from my committee for the disabled, but the noble Baroness has gone a long way and I thank her. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 94 agreed to.



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Schedule 7 [Adjudication functions under Medical Act 1983 and Opticians Act 1989]:

Earl Howe moved Amendment No. 118:

The noble Earl said: Before I address these amendments—like the Minister, I welcome the fact that we have moved on to Part 2—perhaps I could preface my remarks by saying that a number of amendments have been tabled in relation to the changes proposed for medical regulation, nearly all of which are of a probing nature. The value of the Grand Committee is that we can examine the proposals in the Bill in an atmosphere that is not going to result in any division of opinion. We are here to test the underpinning policy. I note that the GMC is concerned that some of the amendments tabled are apparently of a kind that question the decisions that have been taken by it and by the Government. But it is right that these matters are debated and not simply glossed over. The job of this Committee is to test policy and, therefore, I make no apology for having tabled the amendments.

New Section 35ZA provides for the GMC to publish guidance on what type of sanctions should apply to the doctor, depending on the facts that are found by the adjudication panel. The OHPA must take account of this guidance. If the GMC believes that the OHPA has been too lenient, paragraph 11 of the schedule gives it powers to refer the decision to the court. The question posed by these provisions is this: if the intention is that the OHPA should be an independent adjudicatory body, how appropriate is it for the GMC to continue to determine the sanctions that should apply to fitness to practise decisions? The whole raison d’ĂȘtre of the OHPA is supposed to be that we have a body that is quite separate from the GMC, yet here we see this umbilical cord continuing to operate between the two bodies.

The requirement to take into account the GMC’s guidance on sanction would appear directly to compromise the adjudicator’s independence at the sanction stage. Indeed, the GMC’s guidance on sanction is designed precisely to influence the adjudicator’s choice of what sanction to impose. There are those who view this as a direct fettering of the adjudicator’s discretion.

In a fitness to practise case, it is the GMC that instigates the proceedings. Therefore the question is: is it counterproductive or helpful for the council to have a say in the outcome of the case? When we look at the process in a criminal court by way of comparison, we do not find that the court has to take into account any guidelines about sentencing supplied by the prosecution, yet here we have the prospect of that happening.

I understand the counterargument that the GMC has powerfully advanced: that, as the guardian of medical ethics and medical standards, the council should have a direct role in ensuring that the operational guidance for the OHPA relates back to these standards in a way that is consistent and

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coherent. The guidance will be there precisely to support professionalism. If there is a derogation from it, it will set out how seriously that derogation should be treated. The GMC regards the maintenance of professional standards as its core function, and none of us would disagree with that. It argues cogently that all it is asking for is for the OHPA to pay regard to the guidance, no more than that.

There need to be guidelines about sanctions and warnings—they are an important way in which consistency and transparency of decision-making can be achieved—but the question we need to address is whether the guidelines issued by the GMC are the only way of achieving the desired result. One alternative could be to allow the OHPA to draw up its own guidelines. It could do so in consultation with the GMC and the CHRE, as well as with other interested bodies. That is what the amendment proposes. What is at stake here is the visible independence of the OHPA from the GMC—and, indeed, from anyone else—in the interests of fairness and of justice being seen to be done.

I have been quite open and, I hope, fair in recognising that there are arguments both for and against the maintenance of the umbilical cord between the GMC and the OHPA with regard to indicative sanctions, but we need to hear from the Government precisely why they favour such an arrangement when, as we all know, perceptions in these matters are so important. I would like to hear what answer the Minister has to the concerns I have outlined. I beg to move.

Lord Walton of Detchant: Rarely in proceedings in your Lordships’ House do I ever find myself in disagreement with the noble Earl, Lord Howe. I have to declare an interest as a past president of the General Medical Council. I admit that my seven-year presidency ended in 1989 before I became a Member of this House, so the GMC and its responsibilities have changed substantially since that time, but surely the White Paper and its proposals that related to some of the recommendations of Dame Janet Smith in her important report were designed to remove from the GMC the final jurisdiction over doctors who were being accused of serious professional misconduct, and whose fitness to practise was in some respect impaired by reason of either conduct or health.

It is for that reason that—although I have some reservations about many aspects of the White Paper—the OHPA was so designed to stand in the Bill as being the final court, taking away from the General Medical Council the responsibilities for the legal proceedings against any doctor whose fitness to practise was regarded as being impaired. Surely that independence would now be prejudiced if the OHPA were to be invited not only to be the final court of judgment but to lay down the criteria on which issues of professional unfitness to practise were defined. The GMC has made it clear in its letter that its core guidance in Good Medical Practice,

and has always made it clear that doctors may be disciplined if they show,



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because that failure can put their registration at risk. The letter goes on:

I am very sad, having talked on Monday about the purity of the English language and correct phraseology, to find that an official letter from the GMC goes on to say,

which should be “this criterion”; being singular and not plural. I pass that over. I quote:

In other words, from the body that is setting the standards to the body that is determining whether those standards have been breached. It would mean that if fitness-to-practise panels were to make decisions,

I could say much more, because there should be that separation between the standards-setting body and the body that is concerned with the decision as to whether those standards had been breached. In the GMC’s briefing several quite important decisions by learned judges appear to clarify that situation. For that reason, with deep regret to my colleague the noble Earl, Lord Howe, I cannot support the amendments.

Baroness Finlay of Llandaff: I slightly disagree with the noble Lord, Lord Walton, and I do so in fear and trepidation as a doctor who is registered with the GMC and who was registered when he was presiding over it. This demonstrates the importance of Grand Committee on a topic that is so fraught.

The reality is that the livelihoods are at stake of professionals who have been high achievers and who want to achieve well throughout their careers; and something has happened and they have come crashing down, for whatever reason. I remind the Committee that we must remember that in this country people are innocent until proved guilty and that, under Article 6 of the European Convention on Human Rights, people have the right to a fair hearing by an independent and impartial tribunal. The hearing includes the totality of the case at the fact-finding stage and the sanctions stage.

I have been influenced in the way that I regard this amendment by the fact that the Medical Defence Union is not happy with the wording of the Bill, and some of the reasons for that have become important for the profession. The GMC guidance on sanction could be perceived to have a built-in bias because there is no requirement in the Bill for that guidance to take a balanced view. One part of sanctions is not to

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strike doctors off, but to ensure and be able to enforce that such doctors are retrained in whichever area that training is needed, or that they seek the kind of support they need for their professional practice that perhaps they have not had for many years. There is a clear and compelling need for the OHPA to have published guidelines on sanctions and warnings, but I can see the arguments for the adjudicator to draw up its own guidelines, albeit with guidance from the GMC. It is the strength and power of the messages moving along that umbilical cord, as the noble Earl, Lord Howe, put it, that becomes important.

I may have misinterpreted the Bill, but it appears that the GMC is able to question an inappropriately lenient decision by the OHPA in the event of a decision being taken, but I am not sure that the GMC is able to question an inappropriately harsh decision. What protection is built in for a doctor where the OHPA decision seems to those in the regulatory body to be inappropriately harsh?

5.45 pm

Baroness Tonge: I, too, am very disturbed by the noble Earl’s amendment because, like the noble Lord, Lord Walton, I find that I usually agree with him. Indeed, I wonder if I am saying the wrong thing because I am disagreeing with him. But I am worried about a general trend which seems to be developing in the National Health Service that almost deprofessionalises the profession. I hope that I am not putting it in too strong terms. We are no longer the great medical profession, we are part of the workforce of the National Health Service and we are being regulated and told what to do. In the past year, we have even been told how to train junior doctors, right down to where they should apply and what form they should download from the internet. I hope that the Minister can reassure me that there is no intention on the Government’s part to deprofessionalise the medical profession.

At the moment, there is a great danger that this is beginning to happen because the profession has for decades worked loyally with the National Health Service. It is a dangerous development and the medical profession is starting to see a red light and to wonder what its future is within the health service. Maybe I am generalising too much, but that is my worry, and it is encapsulated in the noble Earl’s amendment because I am afraid that it may be one more step in the deprofessionalisation of the profession because it would somehow diminish the role of the GMC. I would not want that to happen.

My noble friend Lord Carlile is not yet in his place—I hope that he will arrive soon—but I wonder what would happen if the same sort of processes were introduced for lawyers. I think that there would be an awful stink, but of course it cannot happen to them because they do not work for a national legal service, they are still independent. That is my contribution and I hope that the Minister can offer some reassurance.

Baroness Jones of Whitchurch: I suppose I should declare an interest as someone who has been employed on fitness-to-practise panels for the past couple of years. I, too, was disappointed to see the amendment of the noble Earl, Lord Howe, because

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one of the things that I have felt for several years is that the GMC has been on a long, learning journey from which it has learnt the lessons from the big legal cases and the big inquiries and is in the process of modernising to take account of those lessons. I have been very impressed by the openness with which it has done that, and I am aware of the amount of dialogue and support that there has been for what the Government propose here, so to start saying at this stage that we can do better than that is unfortunate.

I do not want to echo all the good things that the noble Lord, Lord Walton, said, which are included in the GMC’s briefings, but I do think that the document, Good Medical Practice, is a gold standard. It is not a static document; it has evolved over time. My understanding is that doctors hold that document in very high esteem. It is more than just about establishing professional standards; it is something against which doctors accept they should be evaluated. We should not lose sight of that document. It would be hard for a new organisation, however worthy, to find the eloquence and the expertise to replicate that document, so we should not lose sight of its importance for doctors’ training and professionalism. I will not go on or I will repeat comments of colleagues. I oppose the amendment.

Baroness Howarth of Breckland: I did not intend to speak in this part of the debate, but the noble Baroness talked about professionalism, which made me get to my feet. I am afraid that I support the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, in this matter. This is a question of how we reassure the general public that there is a separation of powers. This is done in all sorts of areas. Many organisations have a part that hears complaints, and adjudication and sanction are often separated out from the professional body that sets the standard. This debate should be had because we got into difficulties previously when we used this word “professionalism” to cover poor practice.

I am a professional in another field, and I would expect to be held to account—I hope by my organisation, which could strike me off. We need to think this through and discuss this kind of separation of powers, which would not prevent there being some method of influence. I have recently been involved with the General Medical Council and find it to be a superb organisation, but that does not prevent it being questioned. I speak simply because I wanted to support the noble Earl and the noble Baroness, Lady Finlay, in testing and pressing the issue of what it means to be a professional. It does not mean that you are protected.


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