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The next letter is about a dental hypnotist. I cannot comment very much, as I do not know anything about dental hypnotists. In fact, it is from the man who edits the general dental practitioners’ journal, who says that he has had a lot of responses, including this response from a dental hypnotist. He says:

Again, I am not sure why. The final letter says, again, how the GDC has met the correspondent with only,

I could go on and on, but I shall not. I spoke to the GDC itself and asked it to tell me what the loophole was and why doctors could do this when dentists could not. The response from the man from the GDC was that he did not really know but would try to find out. He went on to say:

He goes on to say that he will let me know when he has more of an answer to it. That was from the GDC.

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I said at Second Reading that there should be a separate list. I do not care about any of the procedures of this; it is entirely a matter for the General Dental Council whether it makes a separate list. Under the revalidation scheme it may be that in due course the doctors need to list such people separately.

I think that dentists, both public and private, should be treated in the same way as doctors are. I cannot understand why there should be a difference. It should be the case that you can practise if you have, in medicine, a practising certificate and, in dentistry, this annual practising certificate. If you do not have that, you cannot practise. There are many situations where it would be important for the body on which you serve to know that you had been an honourable dentist, now retired or having voluntarily ceased practice perhaps because of whatever else you are doing. There is merit in distinguishing between you and those people who have been bad dentists and who have been struck off. There is no way at the moment of knowing which category you are in.

I declare a personal interest because, if the provision were introduced, I would probably pay my £100. I do not know that I would. I might be too old and, like that 84 year-old, not bother. I am not guaranteeing whether I will go back on the register, but I believe that it should be possible for dentists to do this. That is what my amendment proposes. It would simply enable the General Dental Council, in consultation with the profession, to take this action. I beg to move.

Baroness Thornton: Amendment No. 137 would amend the Dentists Act 1984 to allow retired dentists to remain on the dentists register on the payment of a reduced fee. It also makes provision for such dentists to be restored to the register on payment of a fee if the reason for their erasure was non-payment of that fee.

The noble Baroness, Lady Gardner, is correct that the Dentists Act does not currently contain a provision that would allow for this. I fully understand the feeling of loss of connection to the profession when a dentist retires. As the noble Baroness knows, I have a great deal of sympathy with the argument that she has made. Removal from the register signifies that a dentist is no longer in practice but, as the noble Baroness has so eloquently described, it also means a great deal else. My officials have spoken to the General Dental Council about this issue. Its view remains that the dentists register exists to protect the public and that it is not appropriate for it to maintain a list of former dentists.

The noble Baroness made a powerful case. I would like to reassure her that, should the view of the General Dental Council on this point change in the future, the Government would consider making such a change through an order under Section 60 of the Health Act 1999. We do not consider that primary legislation would be required. It is therefore not necessary to make such a provision in this Bill, as we already have the flexibility to do this through secondary legislation, if the need arises. I can feel a campaign coming on here. We do not think that it would be appropriate to accept this amendment

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without the agreement of the General Dental Council, so I hope that the noble Baroness, Lady Gardner, will feel able to withdraw it.

I just say something about hypno-dentists. A member of my family benefited greatly from one; they were very frightened and the treatment helped them to have the necessary dental care.

Baroness Gardner of Parkes: I thank the Minister for that helpful reply. As we are in Committee, and we cannot divide in any case, I have no alternative but to withdraw my amendment. I do so under the impression that we can discuss this matter further. I am slightly concerned about the General Dental Council having to agree to the provision, as all the good things that I have seen happen through the General Dental Council over the years have come from pressure within the profession for changes. That is why I was keen to have an enabling amendment, which would mean that the General Dental Council could no longer hide behind what has clearly been a distortion of the truth for many years—its saying that this cannot be done. When I tabled the amendment, I was told that the council could have applied at any time to any Government for an amendment to be made under Section 60, to which the Minister referred. That option was always open to the council, yet it always denied that this could be done without primary legislation. Therefore, even for the Minister to have placed that on record is extremely valuable. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 [The Council for Healthcare Regulatory Excellence]:

[Amendment No. 138 not moved.]

Clause 108 agreed to.

Clause 109 agreed to.

4.45 pm

Clause 110 [Powers and duties of Council]:

Baroness Finlay of Llandaff moved Amendment No. 139:

“(a) ”

The noble Baroness said: Amendment No. 139 would allow Amendment No. 140 to be inserted. During the previous debate, it struck me that one of the first jobs of the Council for Healthcare Regulatory Excellence might be to get the General Dental Council to learn a few lessons from the General Medical Council’s book on more modernised and open procedures. I wish the noble Baroness, Lady Gardner of Parkes, well in her mission to do that.

The amendment would ensure openness of procedures. The council will be taking major decisions to protect the public from malpractice and, as such, the public deserve to be assured that the processes will be undertaken without undue delay and without any bias. On a previous day in Committee, the noble Baroness, Lady Golding, gave details of the processes that contain potential bias and explained how that can result in a

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miscarriage of justice. I am concerned about how, without open reporting and scrutiny, the public and the professions will be assured that the council is working well.

In the light of our previous discussions, it might be helpful to consider the fitness-to-practise statistics. At the moment, there are about 244,000 doctors on the medical register and approximately 5,000 complaints a year are received by the GMC, of which between 1,300 and 1,800 are investigated. Only 300 of these cases are referred to a hearing, resulting in around 40 to 50 doctors being erased each year. This gives one an idea of the funnelling-down of the disciplinary processes. While we have addressed the issue of erasure, the GMC has put in place many other remedial actions and retraining procedures.

I hope that the amendments are self-explanatory in relation to timeliness and independence. An undue delay in procedures is damaging to the professionals, to the patient population and their families, to those involved in investigations and to those who have brought forward cases. As time goes on, the damage tends to be cumulative; questions are asked and trust is lost. However, if issues are dealt with in a timely way, trust in the process is more likely to be retained by all parties. I beg to move.

Earl Howe: My Amendments Nos. 139A and 141 are grouped with the amendment of the noble Baroness. Amendment No. 139A is simple but its purpose is to address an important point. Clause 110, as we have heard, covers the powers and duties of the Council for Healthcare Regulatory Excellence. In new subsection (4)(c), the council is given the explicit power of,

and so on. The word that sticks out like a sore thumb is “investigating”. Is it really the Government’s intention that the CHRE should carry out investigations into individual cases? The word “investigate” is defined in my Chambers dictionary as,

I have grave doubts about whether that is what the CHRE should be doing. The purpose of its work is to audit the work of the regulators. In doing that, it certainly needs to look at a selection of individual cases, but it surely will not take it upon itself to investigate those cases ab initio as if it were the Criminal Cases Review Commission or some kind of appeals body. If the CHRE were to do that, not only would that be resource intensive, but the council would run the risk of being looked on by lawyers as a source of useful material from which a case for appeal against an adjudication could be mounted. To say that it can investigate individual cases implies that it will be able to reconsider the evidence and facts of a case as if it were intending to confirm or overturn a panel decision. That is not what the CHRE is there to do. In the amendment, I am suggesting that “scrutinising” might be a better word than “investigating”. To scrutinise means to examine closely, which is surely what is meant here.

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Amendment No. 141 relates to new Section 26A to be inserted into the National Health Service Reform and Health Care Professions Act 2002, which established the CHRE. Subsection (3) of the new section states:

I question seriously whether that power is appropriate. We need to remind ourselves what the CHRE is and what it does. It is what is known as an executive non-departmental public body. It is a type of arm’s-length body. “Arm’s-length” means that it does not have to refer any of its decisions back to its sponsoring department; its decisions cannot be overturned by the department or by Ministers; it does not have to explain to the department why it has made a particular decision; and it does not have to give the department details of its decisions. In this sense, it is similar to the OHPA and Monitor, both of which are executive non-departmental public bodies. Like them, the CHRE is operationally independent of government and Ministers.

The CHRE has two main functions. The first is to oversee and check the medical regulatory bodies and the second is to encourage harmonisation of working methods and practice across the various regulators, as the noble Baroness reminded us. In doing that, it acts as an independent voice for patients. Independence has two elements: independence from the regulators and independence from government. It is no accident that the CHRE is accountable directly to Parliament. It meets in public in all four countries of the United Kingdom to discuss its annual report. Its whole way of working is transparent. Against that background, I do not think that a power of direction in the hands of the Secretary of State couched in broad and general terms is consistent with the letter or the sprit of the founding legislation. I do not think that it should be there. It would be helpful to hear from the Minister why she believes that such a power should be granted.

Baroness Cumberlege: I support my noble friend. I fear that I am boring for Britain on the subject of the independence of these bodies. I cannot understand why the Secretary of State seems so keen on controlling all these independent regulators. I am beginning to wonder whether he has enough to do. Does he feel underemployed? Is he anxious that he may be made redundant? Knowing the Secretary of State, I think that that is extremely unlikely. His workload is probably horrendous, so here is an opportunity to give him a little more time to enjoy himself and have a day out with the family and perhaps not be quite so involved in all these different regulators.

As my noble friend said, new Section 26(3) gives the Secretary of State the power to direct. That undermines the CHRE’s independence and is unnecessary. One point not made overtly by my noble friend is that, as the regulator covers all the countries in the United Kingdom, this provision, which refers only to England and Wales, creates an imbalance with the devolved Administrations, which could be subject to conflicting requirements. At present, the Secretary of State requests the regulator to do some work. Although I know that the noble Lord, Lord Walton,

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is anxious to abolish this regulator, it seems to me that it is an important part of the regulatory jigsaw. We know it to be a reasonable body; it has never refused a request from the Secretary of State. Independence allows some practical negotiation on the scope, timing and use of available resources.

I understand that the CHRE is doing some extra work investigating the NMC at the request of the Secretary of State. It is also doing additional work on pharmacy and has been asked to advise the Northern Ireland Office. The clause is not necessary and it undermines the independence of the CHRE.

I support the amendment moved by the noble Baroness, Lady Finlay. I remember many years ago when the General Medical Council was very slow at hearing cases. As the noble Baroness ably said, that was part of the problem of the lack of trust that grew with the GMC. Her suggestion that it should be monitored and a report made to Parliament would keep the GMC on its toes. I know that recently it has done much better but we do not know what the future will hold, so this would be a good measure.

Baroness Thornton: Amendments Nos. 139 and 140 would widen the powers and duties of the Council for Healthcare Regulatory Excellence. The amendments of the noble Baroness, Lady Finlay, would require the CHRE to audit the timeliness and independence of all processes within healthcare professional regulation.

I sympathise entirely with the spirit of these amendments. I know that the noble Baroness is trying to ensure that fitness-to-practise procedures in particular happen within acceptable timescales and are fair and independent. I could not agree more with those principles. However, the amendments, as drafted, would extend the remit of the CHRE to every possible facet of healthcare professional regulation at both local and national levels. That would dilute the focus of what is already a small organisation and it would make the CHRE, in having to cover such a wide remit, far less effective in the reporting role that it already has.

The noble Baroness, Lady Finlay, may be reassured to know that this existing reporting role extends to all the processes of the health regulatory bodies. The CHRE already has a statutory duty to hold annual reviews of regulatory body performance and to provide an annual report to Parliament, as has been mentioned. Clause 109(6) strengthens its existing review powers by requiring the CHRE, when providing its annual report to Parliament, to state how far each regulatory body has complied with any duty imposed on it to promote the health, safety and well-being of patients and the public. Clearly, the timeliness and independence of regulatory body processes are part of promoting the health, safety and well-being of patients and the public. Therefore, if the CHRE felt that a regulatory body was delaying the hearing of cases in an unacceptable way, or if the independence of a regulatory body’s processes was undermined, it would have to state that in its assessment of the performance of that body as part of its annual report to Parliament.

Amendment No. 139A would amend new Section 26(4) of the National Health Service Reform and Health Care Professions Act 2002 by replacing the

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word “investigating” with “scrutinising”. Before saying why I cannot support this amendment, I must first explain that Section 26 of the 2002 Act sets out that the CHRE may do anything that appears to it to be necessary or expedient for the purpose of, or in connection with, the performance of its functions. Section 26(2) sets out what the CHRE may do, which includes investigating and reporting on how each regulatory body has performed its functions. I know that noble Lords will agree that the ability to report on how each regulatory body does its job is crucial to the CHRE in holding the regulators to account on behalf of patients and the public.

5 pm

Section 26(4), as amended by the Bill, is a clarifying provision and does not confer any additional functions on the CHRE. Instead, it clarifies that the CHRE can consider individual cases to help to compile general reports on regulatory body performance or make general recommendations to the regulatory body. We have therefore used the word “investigating” in the amended Section 26(4) to match the wording of the existing legislation, which enables the CHRE to investigate the performance of each regulatory body. Any other wording would be inconsistent and might lead to doubts about the intention of the amended section.

I am happy to reassure noble Lords that the word “investigating” here absolutely does not mean that there will be a reinvestigation of individual cases; rather, it clarifies that the CHRE can investigate how particular cases have been dealt with by the regulators in order to reach all-important general conclusions about the performance of a regulator.

Amendment No. 141 would remove new Section 26A(3) from the National Health Service Reform and Health Care Professions Act 2002. New Section 26A(3), to be inserted by Clause 111, allows the Secretary of State to give directions to the CHRE on the way in which it carries out its functions. The Secretary of State must consult the CHRE, Welsh Ministers, Scottish Ministers and the relevant department in Northern Ireland before giving any directions. I hope that I can satisfy the noble Earl and the noble Baroness, Lady Cumberlege, that this provision is justified. I should add that the noble Baroness is not at all boring; she is asking legitimate questions.

I emphasise that this power is not designed to be used regularly. It is a backstop and is to be used only rarely to ensure that the CHRE is able to function properly and that it addresses any key issues of concern in healthcare regulation. It will enable the Secretary of State to require the CHRE to look at a particular public concern about a regulatory issue—for example, if it were widely felt that a piece of work needed to be done to address an issue relevant to all health professional regulatory bodies.

The power has also been included as a result of concerns that the CHRE’s workload could occasionally be too great and that, as a small organisation, it might not have the resources to carry out all its functions at the same time. In these circumstances, the Secretary of State could have a role in helping the CHRE to set its priorities. This would

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allow the CHRE to concentrate its resources on the most important issues where its input was most needed to support patients and the public.

In the ordinary course of events, we will reach agreement with the CHRE without needing to use this power. However, there may be a small number of occasions when it is better that the Secretary of State issues directions so that the reason for the CHRE focusing on some areas above others is clear and transparent. It is important to emphasise that the power is intended to direct the CHRE only on the way in which it carries out its functions. It cannot be used to interfere with or change in any way the core functions or results of the work of the CHRE.

I hope that I have been able to provide noble Lords with the necessary reassurances and that the noble Baroness will feel able to withdraw her amendment.

Baroness Finlay of Llandaff: I am most grateful for the Minister’s clarification. I can see that the wording of my amendment would almost impose micromanagement, which would certainly not be appropriate. I feel somewhat reassured by the assurances that are on the record about how the council should work and what must be in the annual reports.

However, I should like to pick up on two important points raised by the noble Earl, Lord Howe, in relation to investigation. I wonder whether that part of the clause needs to be reworded to provide clarification for just the same reasons. The current wording almost implies the potential for micromanagement and suggests that something could be used later in an appeal against a decision.

My other concern relates to the devolved Administrations. I congratulate the noble Baroness, Lady Cumberlege, as I am usually pretty vigilant about devolved Administrations and I missed a trick here. I can see that there would be merit in not only referring to consultation but saying that there must be agreement between the Health Ministers in the devolved Administrations, because health is devolved. The overseeing of the registration of healthcare professionals is a UK-wide responsibility and requires consistency across the whole of the UK for the way in which they work, in whichever system they work. We have four different healthcare systems emerging now, so if the Secretary of State had powers left in here I would wish the Secretary of State to have to consult.

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