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The Government are sympathetic to the amendment, but we would make such a change to the current arrangements only with the agreement of the Ministers in the Northern Ireland Executive. I am sure that the noble Lord, Lord Trimble, is aware of that. I can inform your Lordships’ House that the Government have discussed this proposal with Ministers in the Northern Ireland Executive, who have indicated that at present they do not wish to have this power. I checked that my information was completely up to date for this debate, and indeed it is. This is still the position of the Northern Ireland Executive. We will be happy to consider the issue again if the Ministers in the Northern Ireland Executive feel that the position has changed.

It may reassure noble Lords to know that, under the current arrangements, policy changes are developed in partnership across the four health departments prior to the drafting of legislation. The devolved Administrations are given the opportunity to input and comment on the draft legislation prior to public consultation, which may result in changes being made. On that basis, and in the light of my explanations, I hope that the noble Lord, Lord Trimble, will feel able to withdraw the amendment.

Lord Trimble: My Lords, I thank the Minister for her comments. I am happy that she clearly understood the purpose of the amendment. I regret to say to the noble Baroness, Lady Tonge, and to my noble friend Lord Howe that they went off at a tangent and did not fully understand the point. As the Minister said, it is really about ensuring that the local region is consulted, as it is in Scotland, where a statutory provision underpins that consultation, which I repeated word for word. It is not as if one was bidding for completely independent

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provisions with regard to qualification, et cetera. However, if noble Lords do not like the idea of having these matters devolved, they need to revisit the primary legislation, which, as I said at the outset, completely devolves all these matters to the Northern Ireland Assembly and partly devolves them to the Scottish Parliament. The starting point of this, and of my observations, is that these are devolved matters.

If a uniform scheme arises on a non-devolved matter, it should be done with proper consultation, rather than through the exercise of a statutory override. The Minister may not regard it in those terms because a degree of consultation tends, as a matter of routine, to take place between the departments, but Section 60 of the 1999 Act gives the Whitehall department the power to override the Northern Ireland Assembly, but not to override the Scottish Parliament. That anomaly needs to be addressed one way or the other. I am arguing for assimilating Northern Ireland to the position of the Scottish Parliament. Perhaps other noble Lords would want to remove the right that the Scottish Parliament has in legislation to be consulted. It is important to have consultation because particular circumstances may need to be taken into account. With regard to the pharmacy profession, a particular circumstance that needs to be taken into account is the existence of the land frontier and the fact that under European legislation there will be a considerable interchange between practitioners either side of that border.

I hear what the Minister says with regard to the position of the Northern Ireland Minister and the Northern Ireland Executive. I have a very high regard for the Northern Ireland Minister and regard him as a very good friend, but I deliberately did not speak to him on this matter so that I would not come between him and his department. That is for him to sort out. My information was accurate only up to discussions as of Friday afternoon; the Minister claims that she is accurate up to the moment. We will see where we are when we come back at Third Reading. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56 not moved.]

Clause 107 [Standard of proof in fitness to practise proceedings]:

Baroness Finlay of Llandaff moved Amendment No. 56A:

The noble Baroness said: My Lords, in Committee, we discussed the basis of this amendment, which is that we do not need to change the law to implement a civil burden of proof. Indeed, the GMC has now changed and is now training its panel members. We do not need to enshrine this in law; it has been implemented already. The initial report suggests that all is well and that problems are not being reported. That may be because the decisions at the moment are lenient, but we may see a swing towards greater stringency. I do not know and no one knows.



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Initially, I had great reservations about the change from the criminal to the civil burden of proof. I have had many discussions with the General Medical Council. I completely accept that the way in which this is working out seems fine, but the reservations about the future have not gone away. The BMA and the defence unions have expressed concerns that the civil burden of proof in the long term may not be the whole answer. Case law has dictated that the criminal burden, not a civil burden, of proof is used in disciplinary proceedings involving lawyers. In 2003, the House of Lords deemed that magistrates should avoid using the civil standard and should apply the criminal standard.

The General Medical Council had a series of sanctions previously and these have been transposed into their new proceedings. One of the most important sanctions is the retraining of a doctor in areas of low competence where there is a departure from the standards laid out by the General Medical Council. The standards are designed to protect patients and not in any way to protect doctors. These protective standards were applied previously and are being applied in the hearings using the civil burden of proof. The concern of the defence unions is whether, over time, all the decisions will be deemed to be fair and consistent as the civil burden is applied flexibly and over an increasingly broad range of problems. Everyone must sincerely hope that they will be and that the system will be fair.

In the light of problems and experience, however, there may be a need for a clear definition at the top end of the scale of flexibility and some cases may require the criminal burden of proof to be used. Changes may need to be implemented. My concern is that the Bill as drafted locks the regulators into a civil burden of proof. In her response to me in Committee, the Minister said:

I was concerned that the Minister was unable to say that we have the evidence that this is the right thing to do and that we are right to exclude the criminal burden of proof.

The amendment is drafted to enable us to leave that door open. We must ensure that there is a clear message in the Bill that, although the civil standard of proof will continue, as is already happening, in the event of a problem arising we will not have to go back through a legislative process and wait. If particular difficulties arise, they can be addressed by reverting to the criminal burden of proof in exceptional circumstances. The amendment is simply a broad safety net, providing alternative wording to avoid locking us into to a civil burden of proof. I beg to move.

5.30 pm

Lord Walton of Detchant: My Lords, I support the amendment tabled by my noble friend Baroness Finlay. I confess that my experience, going back many years to chairing panels under the old General Medical Council arrangements, was that the criminal standard of proof was properly and sensibly applied in leading to sanctions that might affect a doctor’s registration.

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However, I appreciate the reasons why, in her thoughtful report after the Shipman inquiry, Dame Janet Smith made the powerful suggestion that that criminal burden of proof set too high a standard for sanctions to be employed against a doctor who had been guilty of some failing in his or her practice.

The issue is not simply malpractice or criminal behaviour. The new panels also cover issues relating to the doctor’s fitness to practise on the grounds of professional standards or competence, as the noble Baroness, Lady Finlay, implied. Sanctions can be applied by the body to require a doctor to undergo a period of retraining, for example, if it is shown that his or her standard of practice is less than adequate.

Issues also arise in relation to a doctor who may be suffering some form of ill health, which may impair his or her standard of practice. In those cases, a civil standard of proof is perfectly adequate. I am still concerned that in some cases of alleged malpractice the use of the civil standard, even if applied flexibly, as the General Medical Council has now suggested, means that there is a serious risk that injustices may occur. This amendment cleverly leaves open the possibility for the criminal standard to be applied if the practice of OHPA demonstrates that there are cases where the application and use of the civil standard is endangering doctors’ livelihoods at a level that appears to suggest the possibility of serious injustice.

The GMC has been applying the civil standard flexibly and will do so until OHPA is fully established and working. I fully appreciate that other regulatory authorities—in nursing, midwifery, dentistry and other professions—are now using the civil standard of proof. However, reservations about its use continue to trouble me and for that reason I support the amendment.

Baroness Emerton: My Lords, having had the experience many years ago of chairing the professional conduct committee of the Nursing and Midwifery Council and as a lay member of the GMC, I, too, support my noble friends Baroness Finlay and Lord Walton. I go along with everything that they said. I share the uncertainty felt by a large number of professionals over relying purely on the civil burden of proof rather than the criminal. I expressed my concerns at Second Reading, when I said that I was prepared to be persuaded. However, I continue to share the view of my noble friends that this may be unsatisfactory in some cases. In English law, one is innocent until proved guilty. The use of probability is easily misconstrued and I think that it could lead to a wrong decision, although time will tell. I will certainly support the amendment.

Baroness Murphy: My Lords, I am afraid that I will disappoint some of my medical and nursing colleagues. We had arrived at a consensus around the House that the civil standard of proof was the right one. The GMC is supportive of that. I can see the noble Baroness, Lady Tonge, nodding her head. I should say that I have been egged on to say this by the noble Lord, Lord Patel, who has been sitting behind me sticking me in the back saying, “Tell them that we don’t all agree”.

I respect the fact that there will be anxieties about this in the medical profession. However, many of us doctors feel that we are, after all, the same as other

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healthcare professional groups that have had this standard of proof for a long time. We would like to see the provision remain in the Bill so that the GMC cannot change its mind at some future point and decide that it wants to go back to doing something else. Under the Bill as drafted, it would have to adhere to the way in which this is done in other professions and I think that it would be all the better for that.

Lord Patel: My Lords, I have been egged on to speak by the noble Baroness, Lady Murphy. At Second Reading I supported the idea of the civil standard of proof, based on my more recent experiences of the GMC’s disciplinary committee and particularly its interim orders committee, in which any minor deviance on the part of the doctor was tested on the criminal standard of proof—at least, that was how it felt to me. The civil standard of proof, applied flexibly, is what the doctor will be tested on. I clearly now understand why the GMC has moved to that civil standard of proof, flexibly applied. It should deal with all cases, no matter what the severity of the alleged offence. On that basis I do not support the amendment. We will have to wait and see how the civil standard works.

Baroness Tonge: My Lords, I, too, oppose the amendment, for two reasons, the first of which has not been mentioned today. A lot of people said that, if found guilty, a doctor would lose his livelihood, so it was important to keep the criminal standard of proof to make that less likely to happen. We cannot judge doctors by different standards from the rest of the population—that is a ridiculous notion. Everyone’s profession, job or place of work is important to them, and it is not only doctors whom we must consider when dealing with such legal matters.

The other reason why it is important to endorse the enshrining of the civil burden of proof in the Bill is that that enables previous episodes of complaints against the doctor of carelessness—not necessarily malpractice—to be taken into account when considering the case. That cannot be done under the criminal burden of proof. When we are talking about healthcare and care of individuals—the general public—it is terribly important to take that into account. A series of events, not necessarily just one event, might mean that someone should lose their entitlement to practise. I regret that I have to oppose the noble Baroness’s amendment. I almost always support her but on this occasion I feel that I cannot.

Baroness Thornton: My Lords, the amendments relate to a crucial part of the package of reforms on professional regulation—the change to the standard of proof, on which we had an important debate in Grand Committee. The Bill ensures that all health and social care professions’ regulatory bodies and the new Office of the Health Professions Adjudicator must apply the civil standard of proof to all fitness-to-practise proceedings.

The amendments offer two differing approaches; it is true that they are imaginative. Amendments Nos. 56B and 59B would delete the two clauses on the standard of proof in their entirety. Amendments Nos. 56A and 59A offer a different approach in setting out that the standard of proof may, rather than will, be the standard

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of proof applicable. In Committee, the noble Baroness, Lady Finlay, had some concerns about whether it was right to use the civil standard of proof in all cases, but particularly questioned the need for it to be included in the Bill given that the GMC was already moving to the civil standard without the need for primary legislation. It is on this basis that I think that she has tabled Amendments Nos. 56B and 59B. I hope that I will be able to convince her that the clauses are important to the future of professional regulation and should indeed be included in the Bill. I hate to disagree with her—and indeed with the noble Baroness, Lady Emerton, and the noble Lord, Lord Walton, for whom I have the greatest respect.

Since the NHS Plan was published in 2000, there has been a long debate with the professional regulators about the introduction of the civil standard, with influential figures such as Lady Justice Smith coming down firmly in favour of it in light of the evidence that she looked at as part of the Shipman inquiry. As I put on record in Committee, I firmly believe that the use of the civil standard of proof in fitness-to-practise procedures will ensure a balance between fairness to the accused practitioner and the protection of the public. Using the civil standard of proof wholly reflects the nature of fitness-to-practise hearings. I remind your Lordships that the panels conducting hearings into fitness to practise do not in any way constitute a criminal court and will not apply criminal law. Instead, these are civil proceedings, which are best matched with the civil standard of proof.

5.45 pm

I hope that noble Lords will agree that the argument is given powerful weight by the evidence from other sectors. The civil standard of proof is used by the police, solicitors, architects and vets. Of course, it is already successfully used by eight of the 11 professional regulatory bodies. While I acknowledge that primary legislation is not needed to allow the professional regulators to move to the civil standard of proof, it is needed to require them to use it. Put simply, the Government believe that the civil standard is right, so we want to make sure that all professional regulatory bodies use it not just now but in future.

To allow regulators to pick and choose which standard they apply would run counter to the important arguments for the civil standard of proof that I have just set out and might perpetuate inconsistency across the different regulators, which would of course lead to confusion for patients and professionals about which standard would apply. For example, a complaint might involve professionals covered by different regulators and it would be unfair if they had their cases heard to different standards of proof.

While the GMC has decided independently to move to the civil standard of proof, other professional regulators have not. Both the General Optical Council and the Nursing and Midwifery Council have indicated that they will move to the civil standard only when the law requires them to do so. Without the legislation, there would be no way of ensuring a consistent standard of proof across the board. That explains the

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overarching reason why I am unable to support Amendments Nos. 56A and 59A, but I want to make some more detailed comments on those amendments.

There are two possible legal interpretations of the amendments. First, they could have the effect that there was no statutory requirement for regulators to use the civil standard of proof but would allow them the freedom to move to the civil standard in their procedural rules. The Bill would therefore not change the current position. I have already set out in detail why the Government believe that we should not leave the position as it is, so I will not take up time by reiterating that, if noble Lords will forgive me. The amendments could alternatively have the legal effect of requiring panels to decide at the outset of every hearing whether they should use the civil or criminal standard in that particular case. It is unclear how the panel would make such a decision.

We do not consider it helpful to leave that crucial issue to the panel to decide. It will prolong cases while there is legal argument and the arbitrary nature of the decision could lead to a high number of appeals. In any case, the civil standard is applied flexibly. That means that, in the most serious cases, in its application and outcome it will be indistinguishable from the criminal standard.

I hope that I have been able to explain why the clauses are required and that, in the light of my explanation, the noble Baroness, Lady Finlay, will be reassured and will consider withdrawing her amendment.

Baroness Finlay of Llandaff: My Lords, I am most grateful to the Minister for her detailed response and explanation. I certainly would never want panels to be able to decide what to do at the outset of each hearing, nor would I want inconsistencies across the regulation of the different healthcare professions. I reassure noble Lords who have spoken, particularly the noble Baroness, Lady Tonge, that the amendments would do nothing to stop the civil burden of proof continuing; it is proving the correct way to go with what is happening at the moment. Similarly, I say to my noble friends Lady Murphy and Lord Patel that, so far as other professionals go, my concerns arose because the legal profession expressed concerns. Legal professionals probably know a fair bit about the law and, when they are concerned about it, alarm bells ring in my head. With those helpful explanations from the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56B not moved.]

Baroness Gardner of Parkes moved Amendment No. 56C:

“(aa) any person who is a graduate or licentiate in dentistry of a dental authority who no longer practises dentistry;”.(a) in subsection (1)(b) after the word “fee” insert the words “, or non-practitioners reduced fee”;

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(b) in subsection (2A) for the words “a person’s name” substitute “the name of a person who practises dentistry”;(c) after subsection (2A) insert—
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