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As I pointed out in Committee, in most American states doctors have a mandatory duty to report suspected child abuse to the authorities and are protected from liability if they report in good faith. Our Government’s guidance, Working Together to Safeguard Children, recognises the role of health professionals and paediatricians in stating:

Any reasonable person would consider that all this amounts to the same thing, but does it? Not according to the Minister’s letter, for the GMC does not seem to recognise protection for paediatricians reporting in good faith. To be the voice of the child who has no voice can be a risky business, as paediatrician Dr David Southall found to his cost when he did just that and ended up fighting for his professional life.

When paediatricians move a vote of no confidence in the GMC and a paper signed by 53 paediatricians complains that the GMC’s action is contrary to child protection work, something should be done. The General Medical Council has to recognise that it needs to change its approach. Until that day, we must do what we can, however small. It would indeed be helpful—the amendment calls for this—to have a balance between lay and professionally qualified members on any fitness-to-practise panel. One hopes that they would have an understanding of and indeed might have met the problems and that they would be able to react correctly to the lower standards of child protection that the GMC seems to require. This amendment would go some way towards redressing the balance, as such knowledge and understanding on a panel are always helpful.

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Baroness Finlay of Llandaff: My Lords, I support the amendment in the name of the noble Earl, Lord Howe. He rightly highlighted the need to gain the confidence of the public and the profession as regards the new regulatory changes. There will be many changes and hiccups along the way, because that is the nature of changing regulation.

If we do not ensure that there is a balance of members on panels, there is a real danger that decisions will be subject to appeal and that the credibility of the processes will be called into question. I am afraid that I do not share the Government’s confidence that including this matter in guidance or in regulations for the healthcare profession will ensure that it will be dealt with. It depends how that guidance is written and on other things that are going on that day, including the number of people who cannot attend.

I can see the sense behind the amendment in the name of the noble Baroness, Lady Gardner of Parkes. The difficulty is that it may not be applicable to all the regulators across all the healthcare professions, because the way in which people are currently appointed to the regulators differs. I have a reservation about this amendment, but perhaps the Minister will be able to clarify whether the noble Baroness has something important before us today.

5 pm

Baroness Tonge: My Lords, I rise briefly for the sake of completeness to add my support to the amendment tabled by the noble Earl, Lord Howe, for the primary reason that the noble Baroness has just given, which is that the general public must have confidence in this procedure. However fair or just the Government think that their rules or secondary regulations may be, they are seen to be behind the scenes. Therefore, it is terribly important to have a provision such as this in the Bill.

Baroness Thornton: My Lords, Amendment No. 54A would require the same number of lay members and professionally qualified members on OHPA’s fitness-to-practise panels on all occasions. This is an issue that I would expect OHPA to consider when drawing up its procedural rules. I hope that I can persuade noble Lords that we need to give OHPA the opportunity to consider the advantages and disadvantages of different approaches before it decides how to run its fitness-to-practise panels. Existing best practice is for panels to comprise three people, with the flexibility for more panellists to be added for more difficult and complex cases. The Bill, as drafted, mirrors these arrangements. My noble friend Lady Golding outlined one such difficult case. There are always odd numbers on such panels in order to allow a majority vote. As the noble Baroness, Lady Cumberlege, helpfully pointed out in Grand Committee, lay magistrates almost always sit in threes.

This amendment would prevent a simple majority decision by the panel where there is a lay or professional chair. In order to have an equal number of lay and professional panellists, the panel would need to be increased to four people. With a panel of four people, there is obviously no inbuilt mechanism for a majority

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decision, so there is a genuine mathematical problem. OHPA might also consider that such a restriction on the composition of its panels does not reflect the role of panel members. Lay and professional members are there to listen to the evidence presented and to come to an impartial decision on the basis of this evidence. Having lay and professional members on the panels is not to ensure equal representation but to demonstrate that professional regulation is a partnership between professionals and the public.

While I recognise that OHPA may well want to adopt the approach set out in this amendment, I urge the noble Earl, Lord Howe, to give OHPA the independence to make up its own mind. The Bill requires OHPA, in drawing up its procedural rules, to consult the regulators, the professions and CHRE. The rules are also subject to parliamentary scrutiny via the negative resolution procedure.

Amendment No. 56 would prevent the move to fully appointed councils of regulatory bodies and would impose a requirement for at least two council members to be elected from the registrants of the relevant regulatory body. It would also—I am not sure that this is an intended effect—delete the provision in the Bill that would enable councils that wish to do so to move to a lay majority via a Section 60 order. While this amendment would allow the majority of the council to be appointed with a minimum of two elected members, the Government feel strongly that the principle of elections among registrants for positions on the councils of their regulatory bodies is wrong. Therefore, I regret that I cannot support this amendment.

I am sure that noble Lords will agree that, if the people who are being regulated elect the people responsible for regulating them, this potentially creates a perception that they are there to do the bidding of their electors because they are representatives. As I said in Grand Committee, professional members on a regulatory body should not be representatives of the practitioners who have elected them. Elections create a situation where patients and the public are entitled to question whether the professional member, elected by his peers, sees his first duty to those who elected him or to the patients whom the regulatory body exists to protect. I state clearly for the record that the move to appointments is in no way intended to diminish the role of professional members on councils. Instead, it will add more weight to the professional perspective, as appointed professional members will be free from any doubt that their views are coloured by a responsibility to represent the interests of their electorate.

Through the creation of a system of independent appointments by the Appointments Commission, the public and the professions can be assured that people are being appointed because of their abilities, their successful track record of achievement and their commitment to patient safety. The registrants who have these qualities and this experience will be able to apply for appointment through a transparent process and be assessed against competences developed by the commission alongside the regulators.

Finally, I emphasise that none of the regulatory bodies is asking to keep its elected members. They have accepted the principle of moving to fully appointed

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bodies as the best way of securing public confidence in the impartiality of the system of professional regulation. On that basis, and in light of my explanations, I hope that the noble Baroness, Lady Gardner, will feel able not to press her amendment.

Earl Howe: My Lords, this has been a useful debate and I thank every noble Lord who has contributed to it. The Minister pointed out that my amendment is defective in that, if it were accepted, it would lead to an even number of people on the panels. That was not my intention; I am fully signed up to the proposition that there should be an uneven number, for precisely the reasons that she gave. I had thought that the sense of the amendment would have been obvious, as it was to those noble Lords who supported me.

The central point here is public confidence; the noble Baroness, Lady Tonge, was right to bring that out. Having said that, I take the Minister’s point that this matter will be the subject of considerable public consultation. I was also grateful to the noble Lord, Lord Walton, for posing the question about how the rules, when established, would be approved and by whom. It is reassuring to hear that there will be parliamentary scrutiny. I do not belittle the type of parliamentary scrutiny that comes with the negative resolution procedure but, to be negative about the negative resolution procedure, we are all aware that in practice it is not possible for us to change a statutory instrument or to vote it down. We can only look forward to a statutory instrument that is the product of considered prior deliberation by the OHPA and those whom it consults. It is right for me to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 [Extension of powers under s.60 of Health Act 1999]:

Lord Trimble moved Amendment No. 55:

(a) has been laid before, and approved by resolution of, each House of Parliament, and(b) has been laid before, and approved by resolution of, the Northern Ireland Assembly.””

The noble Lord said: My Lords, the amendment relates to Schedule 8 to the Bill. Paragraph 1 of the schedule would bring the pharmacy profession in Northern Ireland within the scope of Section 60 of the Health Act 1999. That section provides for a power to make Orders in Council modifying the regulation of various medical professions covered by other legislation set out in Section 60(2).

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Section 62(10) of the 1999 Act provides that if a provision of such an Order in Council—that is, an Order in Council under Section 60—is within the legislative competence of the Scottish Parliament, the draft order must be laid before and approved by the Scottish Parliament. In Northern Ireland, the regulation of health and associated professions is fully devolved. The Northern Ireland Assembly has legislative competence over all the matters mentioned in Section 60(2) of the 1999 Act. However, there is no equivalent of Section 62(10) for the Northern Ireland Assembly.

That brings me to the main point of my amendment, which is to insert a new subsection (10A) into the 1990 Act. That would make exactly the same provision for the Northern Ireland Assembly as Section 62(10) makes for the Scottish Parliament so that, if a Section 60 order contains provisions that would be within the competence of the Northern Ireland Assembly, a draft of that order must be laid before and approved by the Assembly. This is an important procedural point because it relates to the relationship between this Parliament and the devolved legislatures. It would achieve parity between the Scottish Parliament and the Northern Ireland Assembly and it would apply good practice and good relations between Parliament and the devolved legislatures.

The process is analogous to the Sewel procedure, whereby a consent motion is sought in the devolved legislature when Parliament is legislating on a devolved matter. The Sewel procedure has been put on a statutory basis for Scotland and I am proposing the same for Northern Ireland. My amendment would put the Assembly on the same standing as the Scottish Parliament where the regulation of the profession is devolved. That is the important point. If the regulation of the profession is devolved and Westminster is giving a power to modify that regulation, before that power is exercised there should be effective consultation with the devolved legislature.

The matter was drawn to my attention by the Pharmaceutical Society of Northern Ireland. I cannot avoid the temptation to note that the initials of that body are PSNI. This PSNI was created in 1924, or thereabouts, and I can only assume that it was not drawn to the attention of the noble Lord, Lord Patten, when he decided to use exactly the same initials to describe the police force in Northern Ireland. Some people take great pride in using PSNI to refer to the Pharmaceutical Society rather than the Police Service, but that is by the way.

The Pharmaceutical Society of Northern Ireland noted that the power in Schedule 8 intended to bring it within the Section 60 order power. It made representations to the health department and the amendment derives from those discussions. I think that the amendment was drafted by the society and has been considered by the Northern Ireland department. The first part of the amendment clarifies Section 62(10) and repeats what is in paragraph 2 of Schedule 8. I am not sure whether in this draft that clarification would also apply to the proposed new subsection (10). As the draft fell into my hands from discussions between the society and the department, I decided not to presume to change the wording, as that might have led to greater confusion.

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I expected the draft to emerge as a government amendment consequent on a request from the Department of Health, Social Services and Public Safety in Northern Ireland to the Department of Health in Whitehall. I understood that it would appear at an earlier stage, but it seems that the department has had second thoughts about the amendment. I think, judging from what I have heard of the discussions between the society and the department as late as last Friday, that it may still be undecided.

I thought it right to table the amendment because it relates not so much to the detail of regulation as to devolution and the principle of devolution. I am strengthened by a letter that I received from Dr Brian Patterson, the chairman of the Northern Ireland Council of the British Medical Association. I shall, if I may, read the guts of the letter to your Lordships. It states:

That is an eminently reasonable position to take.

Parenthetically, I add that it is the preference of the Pharmaceutical Society of Northern Ireland that its profession be subject to a local regulatory scheme, similar to the local schemes for the Law Society of Northern Ireland and the Northern Ireland Social Care Council. Such an arrangement could still be put in place by the devolved institutions if the Whitehall department does not use the power under Section 60 as amended by the Bill. In theory, the local option could survive without this amendment, but the existence of this extension of the Section 60 power in the Bill could be read as an intention to override localism.

I emphasise again that this matter is brought forward as a matter of principle concerning devolution. It is not wise to devolve a matter and then a short time later to take a power to override devolution by an Order in Council. It is also not wise to treat the devolved legislatures of Northern Ireland and Scotland differently. I beg to move.

5.15 pm

Baroness Tonge: My Lords, in the absence of anyone else, I express my puzzlement at this amendment. If I were still practising as a doctor, I am not sure that I would want to feel that my colleagues in Northern Ireland were regulated in a different way from me in England. I find it rather a curious notion that a professional body should want to be regulated in different ways.

I remember when our qualifications were very different and no one knew what a medical qualification meant. In my year at medical school,

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there were some wags who took the Society of Apothecaries exam which, apart from allowing you to put up your plate in Harley Street, entitled you to drive a flock of sheep over London Bridge. They all found that entertaining and that was why they took the exam. We do not want to go back to the days when we could not rely on regulation being regulation wherever we were in the United Kingdom. It is terribly important that members of the public can be sure that health professionals are regulated to the same high standard wherever they are in the United Kingdom. For health professionals themselves, it enables easier movement. It means that they are more able to move from area to area within the UK and not fear that they are going to be regulated in a different way.

If Northern Ireland feels that this should be a devolved issue, in my experience in the other place and here, the representatives from Northern Ireland are more than adequate and more than able to represent the views of people in Northern Ireland. I am sorry to have to oppose this amendment, but I feel very strongly that regulation in the United Kingdom should mean just that.

Lord Rogan: My Lords, lest the House think for a moment that pharmacists in Northern Ireland are regulated in any way less stringently than those in the rest of the kingdom, I assure it that the Pharmaceutical Society of Northern Ireland is a most reputable body. I support the noble Lord, Lord Trimble. The Pharmaceutical Society of Northern Ireland has spoken to me as well, and it would like this to be passed. I do not think it demeans pharmacists in Northern Ireland in any way or means that they are less well regulated than those in the rest of the kingdom.

Earl Howe: My Lords, my noble friend Lord Trimble is as ever a powerful advocate for devolved decision-making in Northern Ireland, and I almost always align myself with what he has to say on the subject. However, on this occasion I hope he will forgive me if I sound a dissenting note. Like the noble Baroness, Lady Tonge, I feel firmly that one area of policy that we really should not attempt to subject to devolution is the regulation of healthcare professionals. My noble friend may say that he does not propose devolution in the full sense, but the amendment would provide for decision-making in this area to be vested not only in Westminster but in the Northern Ireland Assembly. That would open up the potential for a different regulatory scheme to apply in the Province from that which applies on the UK mainland.

The central issue is that we need absolute confidence that the system of regulation that is applied across the United Kingdom is uniform, so that, as the noble Baroness said, members of the public can be sure that, wherever they are, the healthcare professionals who look after them are regulated to the same high standard. They should be able to know that no country in the UK has a regulatory system that is weaker or worse resourced than any other. I do not necessarily wish to imply that the Northern Ireland Assembly would want a weaker or worse resourced system of regulation, but we should not open up the potential for that.

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I was interested in what my noble friend had to say about the BMA in Northern Ireland. I can say only that the Royal College of Midwives and the Royal College of Nursing in Northern Ireland oppose the amendment for the reasons that I have given. I also share the noble Baroness’s observations about healthcare professionals and the ease of moving around the UK for work. That should not be forgotten. We should not facilitate a situation in which extra regulatory hurdles could spring up in one part of the UK that acted as obstacles to taking up a job in that part of the country. The current UK-wide system gives us all consistency and certainty, and I hope that my noble friend will not wish to press his amendment to a vote.

Baroness Thornton: My Lords, Amendment No. 55 would require any order made under Section 60 of the Health Act 1999 to be approved by the Northern Ireland Assembly as well as by the UK Parliament. Scotland already has the provision under that legislation to approve orders that contain devolved matters. Health professional regulation is a devolved matter in Northern Ireland and Scotland; it is fully devolved to Northern Ireland and partly devolved to Scotland. I recognise the importance of involving the devolved Administrations in decisions on regulation to ensure that they take account of the differing needs of the four countries. However, they also work towards UK-wide solutions to statutory professional regulation, so that, although there are differences, they work hard.

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