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Baroness Thornton: The procedural rules in fact say that they should be able to find a substitute, or they may have to delay the panel. Let me continue my remarks about other organisations that fulfil similar sorts of duties and do so with panels of three. First, I will respond to the noble Baroness, Lady Finlay, who made the point about the personality of one panel member on a panel of three who may come to a decision unfairly. If that were the case, I suspect that there would be far more successful appeals against

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GMC panel decisions; as it is, there are actually very few. We would expect the OHPA to create equality and balance in its panels.

We do not think that, in this case, there is evidence that a panel of three is insufficient. I say to the noble Baroness, Lady Tonge, that the flexibility exists for there to be a larger panel if there is an important or complex case to be considered. The cases that have been mentioned might well be considered to be just such cases. A panel of three members is widely used by other bodies, such as the Solicitors Disciplinary Tribunal and many of the health professional regulators. In light of best practice in other adjudication bodies, I do not want to impose a larger panel on the OHPA, especially when it will have the discretion through its rules to vary the panel size according to need. Those rules will be subject to consultation under Clause 104, the approval of the Privy Council and parliamentary scrutiny via the negative resolution procedure.

Amendment No. 124 seeks to ensure that there is a professionally qualified member on the panel who has “relevant professional expertise”. We agree that it is important for the panel to have a professionally qualified member on it, and that is what the Bill provides for. The question is whether the amendment goes one step further by saying that the professionally qualified member must have “relevant professional expertise”. I was reassured by the noble Baroness, Lady Finlay, that she was not suggesting that the person should be of the same discipline, and other Members of the Grand Committee have mentioned that. While I understand that there may, on the face of it, seem to be benefits from having this kind of knowledge on the panel, there would also be a real risk of such a requirement either undermining the independence of the panel—if it was a very small discipline that might be the case—or of delaying the panel because of the difficulty of finding someone. It is a question of whether “relevant professional expertise” ties the OHPA down in a way that would not be helpful.

As set out in the White Paper Trust, assurance and safety, we recognise that professional regulation is a partnership between patients and professionals, and one must be fair to both sides of that partnership. In the context of the OHPA, that means requiring the panel to be, and to be seen to be, as independent as possible from the case that is in front of them.

The role of the professionally qualified member is not as a representative of the professional before the panel. The professionally qualified member is there first to ensure that there is an appropriate balance in the composition of the panel, and secondly, like the other panel members, he or she is there to listen to the evidence presented to the panel and make a decision about a practitioner’s fitness to practise on the basis of that evidence.

Requiring panels to have someone with “relevant professional expertise” may have serious implications, as I have outlined. I hope that this explains why the Bill sets out an alternative way of making sure that the panel has the expert advice from professionals that it

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may need to make a decision. I think the noble Lord, Lord Walton, mentioned that. Clause 99 provides for expert advice to be available from outside the panel from either clinical or specialist advisers, which will be made available to all parties. Further advice may be sought by either party to the proceedings in the form of expert or other specialist witnesses.

With that reassurance, I hope that the noble Baroness, Lady Finlay, sees that the Bill allows for the proper provision of specialist advice in a way that does not compromise the independence of the panel, and that she will feel able to withdraw her amendment.

Baroness Cumberlege: I think I am right in saying that when High Court judges sit, they do so in threes. Certainly as magistrates we would sit in threes—indeed, several noble Lords are nodding their assent. Of course, magistrates have powers to imprison people, so they do a very responsible job.

I am not so worried about the numbers, but what I do think is important is this. Where a member has expertise in an area, the role of that member should be transparent. Each member of a panel, although they will have different areas of experience, should be seen to be equal. When expert witnesses come forward to give advice and put forward their testimony, everybody should have a chance to put questions to them and listen to the answers. My worry is that there could be a confusion of roles if an expert person sits as a member of the panel. That could make life a bit more difficult.

I am sorry to have to put forward these arguments because there is no one I want less to disagree with than the noble Baroness, but I am afraid that these are my views.

Baroness Finlay of Llandaff: I am grateful to all noble Lords for joining in the debate. I said that these are probing amendments, and indeed they have probed. We have been given some answers, but questions have also been raised. I understand the arguments for three members and I understand the complexity of having someone on the panel with professional expertise and how that raises the potential for overlap or perceived duplication with external professional legal advice. I should like to reassure my noble friend Lord Walton that there is no intention behind these amendments to do anything to undermine the provisions in Clause 99, which are absolutely essential for a hearing.

I remain concerned that there can be a substitute in the group of three, and that is because somebody will have to be brought up to speed. If the Minister had said that the three members would constitute a quorum and that the panel would be quorate if three members sit continuously throughout the hearing, I would have been greatly reassured. But I can envisage a situation where a panel—

Baroness Thornton: I am told that that is exactly right.

Baroness Finlay of Llandaff: I am most grateful and much reassured.

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The other assurance I seek concerns the OHPA being able to make special provision. Enshrined in that should be the need to maintain a balance between professional and lay members, so that there could not be a skewed number. As the panel increases in size for complicated hearings—and I can see that it might have to do that—it should maintain a balance as it expands.

Baroness Thornton: Perhaps I may give the noble Baroness a reassurance that there is a commitment to the balance of the panel. It must always be made up of an odd number in order to reach a decision, and that is why the quorum is three. The OHPA will set out in its rules, which the Bill requires it to consult on, how and when it will include extra panel members. We would expect the OHPA, in drawing up the rules, to take account of the issue raised by the noble Lord, Lord Walton, and others on the balance of the panel. Further, as I have said, the rules are also going to be subject to parliamentary scrutiny.

Baroness Finlay of Llandaff: The last point I want the noble Baroness to respond to is simply that of the strong personality. It is a credit to the GMC’s training procedures for panel members that there have not been any appeals because of strong personalities. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 123 to 125 not moved.]

Baroness Finlay of Llandaff moved Amendment No. 126:

The noble Baroness said: I will try to be brief in moving the amendment, because other noble Lords have important things to say on these matters. The panel members need to be independent of anything that has gone before. It is very easy to be biased at a subliminal level if you have been party to an investigation, proceedings or any type of inquiry that may surround any case. It becomes extremely difficult not to bring that bias into your thinking when you are in a hearing. Medicine is a very small world. The world of subspecialties is even smaller. There is gossip, there are rumours, and however much one attempts to be independent, it can be hard. I echo completely the words of the noble Baroness, Lady Cumberlege—transparency is critical.

With this amendment I had hoped to ensure not only that we had transparency, but that we had independence from preconceived ideas or previous involvement in inquiries or proceedings. This matter will become particularly important when we move on later to considerthe move from civil standards of proof to criminal standards of proof. However, this amendment is not the place for that argument. I beg to move.

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Baroness Golding: I strongly support the amendment, which is very important indeed. I speak again about paediatricians. I wrote in March to the president of the GMC, who offered to help me to understand the way that the GMC works. I asked for an explanation regarding the inquiry on the fitness to practise of Professor Southall in the Sally Clark case. Following his reply, I said:

I received a reply which said that it would be inappropriate for him to comment on Professor Southall’s case at this stage, as he has appealed to the High Court. He did appeal to the High Court and his appeal was accepted.

That is one case where someone who was supposedly independent obviously was not. The General Medical Council also proposed to ask Dr Nicholson to act as the professional witness at the CNEP trial of Professor Southall, Dr Spencer and Dr Samuel that was due to start this week. That was to happen even though Dr Nicholson had constantly made remarks criticising and attacking the research work at Stoke-on-Trent hospital, where the doctors worked.

I understand that the trial for those three doctors has been delayed because Dr Nicholson was replaced at the last moment. That makes me wonder why. Why should this kind of thing be happening, whereby doctors’ livelihoods are put at risk by people, who are obviously opposed to them, giving evidence as recognised witnesses to the three people sitting on the tribunal at the GMC? What kind of justice is that? We ask for justice for the patients. Where is the justice for the doctors?

Baroness Jones of Whitchurch: I want to make a quick comment, although I cannot comment on the case that has just been raised, because I do not know the details. I was a bit bemused by the amendment, because when we are talking about fitness-to-practise panel members referred to in the amendment—who are different from the specialist advisers who may give advice—there is a requirement for them to be independent. Indeed, we all have to pledge that before a case starts. That may need to be written in the document, but it is certainly the case at the moment. There may be a separate debate about professional clinical and legal advisers and the extent to which they have been involved in a previous role, but the panel members themselves are guaranteed to be independent. That is my understanding.

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Baroness Golding: That has not always been the case. People who have spoken out against what has happened have previously been panel members.

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Baroness Thornton: Amendment No. 126 seeks to ensure that fitness-to-practise panel members have not been involved in previous investigations or proceedings related to the professional before them. That is an important principle and one well established with the current regulators. On my noble friend Lady Golding’s detailed questions on the case she mentioned, it is subject to ongoing proceedings, so it would be inappropriate for me to comment.

The current GMC rules on the composition of panels specifically provide that no panellist shall act as a panellist for the substantive hearing of a case that he has previously considered or adjudicated on in any other capacity. That ensures that panel members who are involved in the investigation process are not called on to take part in the adjudication process, and that panel members who have heard a case against a practitioner do not hear any future cases against him or her.

As I said, that is absolutely right and I agree with the general spirit of the amendment tabled by the noble Baroness, Lady Finlay. However, I remind the Committee that the OHPA will adjudicate only on fitness-to-practise cases. It will take no part in the investigation process. There is also a specific problem with the amendment as drafted. It is currently recognised that review hearings following adjudication can benefit from the inclusion of an original panel member, and the GMC rules allow that as an exception to the general rule that I outlined.

Amendment No. 126 would prevent that, which would mean that it would not be possible to have any continuity between adjudication and any review hearing. Although that is a specific reason why I am unable to accept the amendment, I think that it also demonstrates more generally why it is important to give the OHPA the flexibility to set out the detail of its processes in rules, rather than in primary legislation. Clause 95(3) of the Bill allows for rules to make further provision about the selection of panels in relation to any proceedings. That will allow the OHPA to set out how panel members should be selected so that any conflicts of interest are avoided.

We are creating the OHPA within an enabling framework. We must be careful to resist the temptation to specify too much detail and make too many decisions for the organisation now. Given that we are setting up the OHPA in order to create a proper separation between investigation and adjudication, it is vital that its rules reflect the crucial principle of independence and separation. We must, however, allow the OHPA, as the experts, to decide exactly how to do this. There is a requirement for full consultation on its draft rules. I am completely confident that noble Lords who have participated here and the many organisations which have already played a part in the framing of this Bill will ensure that its rules are robust and fair. Parliamentary scrutiny via the negative resolution procedure will also provide a backstop. On that basis, I hope that the noble Baroness, Lady Finlay, is sufficiently reassured to withdraw her amendment.

Baroness Finlay of Llandaff: I am most reassured by the Minister’s words. I am especially grateful to the noble Baroness, Lady Golding, for her strong support

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and for having brought such specific examples to the attention of the Committee, because they are very important. I put on record that she has done great service to the probity of investigation of doctors by her investigative inquiries into the matters that she has brought before us.

As the noble Baroness, Lady Jones, said, I recognise that the fitness-to-practise panel members have to be independent at the moment; but it was so that we did not revert to the previous situation that I wanted to write that into the Bill. I hope that the Minister's words mean that it will be in the guidance to the panel that they must be independent.

Baroness Thornton: Actually, it will be in rules, not guidance.

Baroness Finlay of Llandaff: I am grateful for that, and that is more reassuring still. I have some slight concerns about putting a panel member forward from the investigative panel onto the adjudication panel, because I would prefer that the adjudication panel can call a panel member to give them evidence, to explain their thinking, to explain what went on and answer questions about the investigative hearing. I have a little concern that we fudge that clear separation by having a panel member go from one panel to the other, particularly given the small size of the panels.

Baroness Thornton: Perhaps I may clarify that point. I said that the specific issue about this was about the review of decisions, not going forward from one panel to another, but being able to participate in a review of a decision that a panel had taken.

Baroness Finlay of Llandaff: I am grateful to the noble Baroness for clarifying that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 127:

The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 128. Both are probing amendments, and they bring us to an issue that has prompted a good deal of debate both inside and outside Parliament: whether the chair of a fitness to practise adjudication panel should on every occasion be legally qualified.

At the moment, the Bill specifies that the chair may be legally qualified and furthermore that rules may provide for pilot schemes under which legally qualified chairs are or are not selected for certain sorts of proceedings. I find it difficult to envisage how pilot schemes will work in practice. How, while ensuring fairness and consistency between cases, do you select which cases are going to be chaired by a lawyer and which are not? You could not do it by random selection, because that would open up the prospect of legal challenge. Will it be done by agreement between the parties? If so, one has to ask what doctor would agree

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to a hearing of their case being chaired by someone other than a lawyer if they believed that this was the best way to achieve a legally secure and fair outcome. I would be glad if the Minister could tell me how she envisages the pilots will be organised.

The more substantive issue is one of principle. There is a strong argument that says that what really matters in any adjudication process is the quality of the chairman; in other words, whether he or she has good chairing skills—not whether he or she has a legal qualification. Because the Bill is drafted as it is, I take it that that is the position of the Government, and I know it to be the position taken by the GMC. The contrary position is to say that only someone with a full understanding of the legal process is fit to chair the panel. Adjudication is a legal process; it is not a medical process. The skills and experience that are needed to conduct such proceedings are legal.

To take one issue of many, the introduction of the civil standard of proof brings with it apprehensions about fairness and consistency between cases and concerns about how the sliding scale is to work. Those apprehensions and concerns would be considerably allayed if it were known that a lawyer with experience of applying the civil standard had to be the chair of the adjudication panel.

In general, applying the law properly and consistently, summing up a case fairly and composing the final judgment thoroughly and clearly are all tasks that, prima facie, are better done by a lawyer. I believe that legal chairs are the norm with the Family Health Services Appeal Authority, which can make decisions that have consequences for a doctor’s future career that can be every bit as profound as a fitness to practise judgment.

If it really is the Government’s intention to allow the OHPA to decide which cases should have a legally qualified chair and which need not, it would be helpful to hear from the Minister what criteria should govern those sorts of decisions and why. I beg to move.

Baroness Tonge: I support in particular Amendment No. 128, regarding this rather clumsy Clause 95(4), which talks of,

I am still reading it, wondering if I have got it right. My difficulty with this is that we are talking about a legal process that is going to determine the future career of a medical practitioner, and we are saying that we are going to set up pilot schemes so that some doctors will be “tried” by one method, with a legal chair, and others with a lay chair.

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