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If, after a certain time, the Government decide that the pilot for lay chairs is rubbish and has not worked and that we must ensure that all panels have a legal chair, will those medical practitioners who have been tried by a panel with a lay chair then be able to challenge the decision that that panel came to, on the grounds that the Government were not satisfied with

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the way that panel was set up because it had a lay chair, and that it was therefore not a valid panel any more? I am not a lawyer, but there is a crack in the pilot scheme idea that could cause an awful lot of trouble and confusion. It would be much better, if the Government are unsure about which is the best method, to say, “We will go for a legal chair and in 12 months we will review all the cases that have been done by the panel and see whether that was a worthwhile method and if there have been any problems”.

This is a probing amendment, as the noble Lord, Lord Howe, said—the noble Earl, Lord Howe, I am sorry. It is late, and the back is aching. I support the amendment.

Lord Walton of Detchant: I must say, I do not envy the Minister’s task in answering on these complex issues. On the one hand, there is a strong case to be made for having legally qualified chairs of these fitness-to-practise panels. On the other hand, if that is accepted, what is the role of the legal assessor who, under Clause 98, will be present at every hearing to advise the panel on matters of law? In my experience, the legal assessor played an invaluable role in being able to advise the panel on difficult points of law. It could be, of course, that the chair of the panel, if legally qualified, might be a barrister who took a completely different view from the legal assessor of the legal issues involved, or might be a solicitor who then felt rather overawed by the presence of a highly qualified legal assessor who was a Queen’s Counsel. It is very complex. Like the noble Baroness, Lady Tonge, I am concerned about the principle of having pilot studies and pilot schemes in this very difficult and complex area.

The GMC makes a number of points. Whether or not the perceived procedural advantage of legally qualified chairs sufficiently justifies the loss of the current separation between decision-making and the provision of legal advice, if we always have legal chairs, other panellists—lay members and doctors—may be perceived as second-class participants in the proceedings. Are we confident that the blurring of roles between a legally qualified chair on the one hand and the legal adviser on the other might end up with the legally qualified chairman offering advice and guidance in private to fellow panellists that should, in the interests of fairness, be repeated publicly? This is a very difficult and complex issue, and I do not see how it can be readily resolved. I feel very uncomfortable about the pilot studies.

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Baroness Finlay of Llandaff: I have an amendment in this group. The discussion already demonstrates that we almost have equipoise on some of these issues. My amendment would ensure that an independent legal adviser must be present. My concern is that if you have a legally qualified chair without a legal adviser, the chair could be put in the situation where he or she is also a legal adviser, in effect advising him or herself by wearing two hats. That does not push the debate towards an independent chair.



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I also have a big concern about the concept of a pilot scheme, as it sounds a little like a randomised clinical trial but without the benefit of informed consent. You could never have a clinical trial in medicine without informed consent. Yet here we have the equivalent in a hearing about a doctor, so I have great concern about this. My personal view is that the training of the chair in the relevant procedures for the hearing is more important than what kind of university degree they have. They may have got it 20 years ago. The fact that they have a legal or medical degree does not mean that they are up to speed on procedures, are well trained and will conduct a hearing well. I would much rather have rigorous rules on the background training of whoever will chair this, so that they really understand the civil burden of proof, which we will come to later and which is the most contentious issue of all, whatever their background undergraduate degree. However, I also want to ensure that we retain a legal adviser, given that a doctor’s whole livelihood is at stake.

Baroness Howarth of Breckland: I support colleagues on all sides of the Committee in this argument. I found this extraordinary when I read it. After all the debate that we had about where we needed legal representatives—we in this House decided that we did not—to find it in the Bill was rather strange. I thought that we had decided at some of the highest levels that we did not need a lawyer—and I have a huge respect for lawyers. As some noble Lords have said, we do have a legal assessor.

I have been an adjudicator in some curious places, such as the telecoms industry, and have adjudicated over situations involving large sums of money where whole companies could be put out of business if the adjudication went a particular way. The skills outlined by the noble Baroness, Lady Finlay, were more important to me than any legal advice, because what I needed was my legal assessor. You need a lawyer by your side, but if the chair is also a lawyer, there could be a real conflict.

Given the way in which the Bill is framed, the noble Lord, Lord Walton, is absolutely right that there will be different sides to this. I found it strange that we did not think that the lawyers needed any training in chairing. I have had experience of brilliant chairing by lawyers and some pretty awful experiences too. Let us get the skills we need in order to get this right. I hope that the noble Baroness will feel that this is something she can take away to consider because at the moment it is a hostage to fortune and could undermine the work of the panels.

Baroness Jones of Whitchurch: I want to add my two pennyworth on this because I agree with the noble Baroness, Lady Finlay, that the important issue is that we have to have the legal assessor giving legal advice in the open arena so that everyone can hear what that advice is. Actually, I disagree with the Government’s position here because I do not think

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that we should have a legal representative acting as the chair at all, even in the pilots. The danger of having a legal representative as the chair is that a lot will take place behind closed doors and will not be open to challenge. What is important in terms of transparency and openness is that people are able to hear, see and challenge the legal advice. That can be done if there is a legal assessor.

I also disagree with the noble Earl, Lord Howe, who I think was suggesting that lawyers have better chairing skills. I am not sure that that has been my experience either. On numerous occasions I have represented people at employment tribunals, which are chaired by lawyers. They tend to dominate the proceedings and do not give their colleagues much of an opportunity to participate. Moreover, their empathy with the people appearing before them sometimes leaves something to be desired. Good chairmanship skills are essential, and they come through training. However, what is important is good judgment. If the panel is well balanced, however many people are sitting on it, if they are all participating, that is much more important than trying to fix the chair or suggesting that that person has special knowledge which overrides that of everyone else. I support the noble Baroness, Lady Howarth, and I oppose the amendment tabled by the noble Earl, Lord Howe.

Baroness Thornton: This has been a useful discussion and I suspect that we will return to the question of pilots. However, I hope that I may be able to satisfy at least some noble Lords on these points.

Turning first to Amendment No. 127, which would require the OHPA to have legally qualified chairs in all cases, I am glad to have the opportunity to set out why the Government do not believe we should make this decision on behalf of the OHPA. First, we have to look at how professional regulation adjudication is currently done. With the exception of the disciplinary committee of the Royal Pharmaceutical Society of Great Britain, all the professional regulatory bodies currently carrying out adjudication use lay and professionally qualified chairs supported by a legal assessor. The noble Baroness, Lady Finlay, and my noble friend are quite right to say that this is all about training and the quality of the person who chairs the committee. The system works well, and there is no compelling evidence that the OHPA should not continue with this approach. However, we agree that legally qualified chairs could be beneficial in certain types of cases. The Bill as amended on Report in the other place gives the OHPA the option of using legally qualified chairs for cases where it thinks it appropriate to do so.

The OHPA might set out in rules that all complex cases—for example, those that involve a large number of witnesses or which are likely to be particularly lengthy—should have a legally qualified chair. Neither the Government, the General Medical Council nor the General Optical Council consider that the arguments for a legally qualified chair apply as persuasively to cases involving performance or health. In these cases, the main task is to draw conclusions from an assessment of the doctor’s

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performance or health, and the proceedings are not dominated by the examination and cross-examination of witnesses. Similarly, the benefits of having a legally qualified chair are less clear for conviction cases, or cases to consider determinations by other regulators, for example, where the practitioner is from abroad and has been struck off there.

The British Medical Association has said that it,

We agree that this is the key factor in the selection of chairs.

That leads me to my second point. While we agree that there may be merit in having legally qualified chairs for complex cases, all the evidence shows that lay and professionally qualified chairs are perfectly capable of doing a good job in these and any other case. Within the system of professional regulation there is strong reliance on lay and registrant involvement as chairs and panel members. Lay involvement is not unique to this jurisdiction. We need to look only at the contribution of the 30,000 lay magistrates in England and Wales, who deal with 95 per cent of all criminal cases, to understand the value of lay involvement.

Amendment No. 130 would remove the provision under Clause 98 for a fitness-to-practise panel with a legally qualified chair to dispense with the services of a legal assessor. I understand the legitimate concern behind this amendment—that legally qualified chairs will not be able to provide the same quality or independence of advice to the panel as legal assessors, perhaps because they are also occupied with managing the proceedings.

In giving the OHPA the flexibility to decide whether it wants to retain legal assessors where a panel has a legally qualified chair, we are confident that either alternative is fair to the individual practitioner. I can confirm that a panel with only a legally qualified chair would be fully compliant with Article 6 of the European Convention on Human Rights, as would a panel with a legal assessor. There is no reason why a panel chaired by a solicitor would be more or less fair than a panel advised by the same solicitor. He or she would give the same legal advice in either role, and this is the crucial point.

I hope that noble Lords will agree that there is no clear evidence to support imposing legally qualified chairs for all cases, as in Amendment No. 127, or to force the OHPA to retain legal assessors on panels with legally qualified chairs, as in Amendment No. 130. It should be up to the OHPA, as an independent body, to decide what arrangements are most appropriate. The Bill requires the OHPA to consult on its rules and we expect it also to seek the advice of the Administrative Justice and Tribunals Council and consider the experience of other tribunals that use legally qualified chairs.

Amendment No. 128 would remove the OHPA's ability to make rules for the purpose of piloting legally qualified chairs. The OHPA would have to make decisions about the use of legally qualified

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chairs of panels in different kinds of cases without having an opportunity to test its approach first. I recognise that, in allowing the OHPA to run a pilot, noble Lords need to be assured that it can be done in a way which does not compromise the fairness of the proceedings. I shall seek to give that assurance now.

First, in order for a pilot to be fair, all panels must be compliant with Article 6 of the European Convention on Human Rights, which safeguards the right to a fair trial. We are confident that each of the possible options available to the OHPA will be compliant with this legislation. I say to the noble Earl that we do not have an exhaustive list of when legally qualified chairs will be used but they might be used advantageously where there are complex legal issues before the hearing; where allegations are complex; where there are multiple reasons for impairment—misconduct, performance and health; where a number of practitioners are connected with the allegations; where a large number of witnesses are called to give oral evidence; or where the allegations are of a criminal nature and there has been no prosecution or a criminal prosecution has failed.

Secondly, in giving the OHPA the option to decide between having panels with legally qualified chairs, with or without legal assessors, we are looking at advantages and disadvantages in terms of effectiveness—for example, speed and cost—but not in terms of more or less fairness, nor in terms of better or worse legal advice. Lady Justice Smith, in her fifth report on the Shipman Inquiry, recommended that legally qualified chairs should be piloted for some cases. Clearly, Lady Justice Smith thought the proposal feasible. This was not an off-the-cuff remark but a key recommendation in her well considered fifth report.

Finally, I emphasise that the Bill does not require the OHPA to run a pilot. The OHPA may be able to gather more evidence on these issues than is currently available to us and make an informed decision without a pilot. It will also have the advice of the White Paper working group chaired by Sir Ian Kennedy.

If the OHPA decides to run a pilot, it will need to set out how it will do that in its rules, after working closely with lawyers to develop fair proposals. As I said, the Bill requires the OHPA to consult fully on these rules, and they are also subject to Privy Council approval. The Privy Council will approve the rules only if they are fair. As a final backstop, the order giving approval will be subject to parliamentary scrutiny under the negative resolution procedure.

I recognise that these amendments raise valid concerns, and we have had a useful discussion. I hope that I have been able to reassure noble Lords that these amendments are not needed.

7.15 pm

Earl Howe: This has been an extremely useful discussion and I am grateful to all noble Lords who have taken part. There are some extremely difficult issues here. Whether we like the idea of legally qualified chairs or not—and I fully take on board the points made by the noble Baroness, Lady Jones—the possibility of having them is provided for in the Bill.

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The question that arises is: when should you have a legally qualified chair and when should you not?

The noble Baroness, Lady Tonge, put her finger on the problem created by the idea of having pilot schemes, because that must inherently run the risk of at least perceived unfairness on the part of some people. The noble Baroness, Lady Finlay, described the idea as a clinical trial without informed consent. She was right in that.

The Minister appeared to make a distinction between more straightforward cases and more complex cases that might turn on a number of difficult legal and ethical considerations. I can see the distinction that she was trying to draw, but, in practice, I would not have thought that the division was that clear-cut. The problem for the OHPA will be where one actually draws the line and makes that distinction. In any event, the outcome in every case has the potential to be very serious for the doctor concerned. Many doctors might argue that it makes no difference whether their case is complicated or simple; what matters is having a chairman who is fair and who knows what he or she is doing. I am not sure that I heard the Minister suggest that the doctor would be able to express a view on the matter, but perhaps that should be thought about.

I shall be interested to see how the rules in this area and the supporting guidance are framed. I remain uneasy about whether the proposed arrangements will guarantee consistency and fairness between cases. But, for now—

Baroness Thornton: I have been given a note answering whether the doctors will be given the option as to whether the panel hearing their case has a legally qualified chair. We do not envisage that. The decision on the selection of the chair will be a matter for the OHPA.

Earl Howe: I am grateful to the Minister. That is another point that needs to be considered. In the interests of moving on, it behoves me to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128 not moved.]

Baroness Finlay of Llandaff moved Amendment No. 129:

The noble Baroness said: Quite simply, doctors and healthcare professionals are subject to appraisal, so why not make those who sit in judgment over them subject to appraisal and performance assessment, too? I beg to move.

Baroness Thornton: That was admirably brief, although I may not be quite so brief. The amendment proposes that a statutory requirement be placed on the OHPA to carry out performance appraisal of the chairs and members of its fitness-to-practise panels.

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Clearly, the need is for the OHPA and its stakeholders to be confident that fitness-to-practise panels are discharging their duties in a fair and proper manner. This will require the monitoring of the decisions of the panels themselves and the conduct of the individual panellists. However, this really does not require primary legislation.

For example, the General Optical Council monitors the performance on its panels with regard to their decisions and to the performance of the individual members. In appraising the performance of individual panel members, the GOC provides a detailed framework for meetings between a panel member and an appraiser. The appraiser may be a chair-trained panel member or, in the case of when a chair-trained panel member is being appraised, an external appraiser. This seems to work extremely well. The General Medical Council, having examined a range of options and conducted pilots, is also adopting a new scheme of appraisal for its panellists. Both the GMC and the GOC produce papers for council meetings on the appraisal process and results.

Clause 96 sets out that persons appointed to a list hold and vacate the office in accordance with the terms of their appointment. We expect that these terms will include the need to participate in ongoing training and appraisal. It will be a crucial part of the OHPA’s role to ensure that panels and individual panellists are operating effectively. As appraisals are currently undertaken by the current regulators without primary legislation, we are content for the same arrangements to apply to the OHPA. With that, I ask the noble Baroness, Lady Finlay, to withdraw her amendment.

Baroness Cumberlege: I think I should declare an interest. My company is actually doing this work.

Baroness Finlay of Llandaff: Will the Minister confirm that this will now go down in the guidance or rules for the panels?

Baroness Thornton: I am putting it on the record that that is our view. I am sure it will be part of the rules that are drawn up by the OHPA, which we will get another chance to examine.

Baroness Finlay of Llandaff: I am most grateful, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 agreed to.

Clauses 96 and 97 agreed to.

Clause 98 [Legal assessors]:

[Amendment No. 130 not moved.]

Clause 98 agreed to.

Clauses 99 to 103 agreed to.

Earl Howe moved Amendment No. 131:



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