Health and Social Care Bill

(Sixth Day)

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
I remind the Committee that if there is a Division when we are sitting, the Committee will adjourn immediately we hear the Division bell and will resume after 10 minutes.

Clause 50 [Studies as to economy, efficiency etc]:

[Amendment No. 101A not moved.]

Baroness Cumberlege
moved Amendment No. 101B:

101B: Clause 50, page 25, line 46, at end insert—
 “(6) The reference in subsection (1) to improving economy, efficiency and effectiveness shall include in particular—
 (a) financial savings likely to be generated as a result of the recommendations,(b) economic gains likely to arise as a result of the recommendations, and(c) improvements in the effectiveness of patient care likely to arise as a result of the recommendations, in so far as such improvements take advantage of medical technology.”

The noble Baroness said: I am speaking for my noble friend Lord Howe and myself on this amendment. In Clause 50(1), the Bill proposes:

“The Commission may undertake or promote comparative or other studies designed to enable it to make recommendations … for improving economy, efficiency and effectiveness in any activity mentioned in subsection (2)”.

Subsection (2) outlines those activities. Amendment No. 101B seeks to broaden the scope of the comparative studies to include the wider benefits and savings that medical technologies can bring. This is particularly timely given the Heath Select Committee’s recent report on NICE. The committee said of the NICE process that,

“it is also vital that the system is accurate and reflects the real costs to society and the benefits to patients”.

The Government agree that, while this is a complex area, the issue of how NICE takes into account the wider benefits and costs is a very important one and that it warrants further consideration. I hope that the Minister will give this item further consideration today.

Since the Care Quality Commission will take over the functions of the Healthcare Commission, including its role in ensuring implementation of NICE guidance, it is important to equip the new Care Quality Commission with the power to do so in an effective way. We talk a lot about joined-up government, and I applaud the appointment of Dame Carol Black, who works across the Department of Health and the Department for Work and Pensions. I am sure that she would welcome a little help from the CQC that would look beyond the costs and benefits delivered solely to the NHS. For example, where medical technologies enable people to continue in employment rather than have to claim incapacity benefit, those costs and benefits should be recognised.

A good case in point is the cutting edge technology Osigraft, which can be used to accelerate healing a bone following a break. Used during surgery, it can avoid the need for further operations and the resulting disruption to a patient’s working life. New improved implants to replace damaged hips and other joints are being developed using newer materials. The impact on a patient’s ability to continue in employment, thanks to increased longevity of the implants or their ability to improve the patient’s mobility, should be taken into account. Currently, only the net cost and benefit to the NHS are looked at.

My final example is the improved insulin pumps, which provide a convenient yet sophisticated treatment for diabetic patients, benefiting their quality of life and equipping them to lead normal and productive lives. They are far preferable to multiple daily injections for many people. Unfortunately, five years after receiving NICE approval, there remains a pronounced variation in access to the pumps according to patient groups, including the members of the Medical Technology Group, which is a coalition of patient groups, research charities and manufacturers of medical technologies. I declare an interest as chair of the Association of Medical Research Charities.

Our amendment, at Clause 50(6)(c), seeks to redress the balance between medical technologies and drugs and to recognise the benefits that technologies can bring to patients. The Health Select Committee’s report on NICE stated that there are problems with NICE’s topic selection, and,

“Only a few selected medical technologies are chosen as suitable for assessment as technology appraisals”.

As a country, our record on the uptake of innovation within the NHS is poor. Only 4.8 per cent of the NHS budget is spent on medical technology, compared with the European average of 9.4 per cent. As a regulator of health and social care, the CQC should rectify this situation.

The Health Select Committee, in its concluding remarks, stressed that NICE requires the backing of the Government. NICE must not be left to fight a lone battle and support cost and clinical effectiveness in the NHS. Paragraph (c) of our amendment supports the Select Committee’s view. Again, I hope that the Minister will support the Select Committee here.

The recently formed Health Innovation Council—unfortunately shortened to HIC, which sounds like something to do with the alcohol industry—is a good idea. It has been established and is chaired by the noble Lord, Lord Darzi. It covers technologies as well as pharmaceuticals and other interventions. It seeks to deploy a strategy for speeding and embedding innovation across health and social care. In the light of that, I hope that the Minister will recommend the amendment to her ministerial colleague. I beg to move.

Baroness Thornton
I have listened carefully to the noble Baroness about matters that might be included in studies under Clause 50, particularly her remarks about innovation, NICE and HIC. The studies will look at both the independent assessment of the quality of NHS services nationally and the analysis of value for money, which is what we mean by economy, efficiency and effectiveness.

In presenting recommendations, I would expect the commission to consider both the costs and the benefits in order to present a balanced view when making recommendations. Considerations of quality cannot be divorced from whether a service represents value for money. I also believe that the commission will consider both financial savings and economic gains in its reports. The amendment is therefore probably unnecessary.

In particular, the emphasis on medical technology in the proposed Clause 50(6)(c) seems narrower than we hope these studies will be, given that they will cover both health and social care. We have discussed the important role of the National Institute for Health and Clinical Excellence in producing guidance on the use of new and existing treatments and procedures within the NHS. While the Care Quality Commission absolutely should have regard to the use that providers make of innovation and technology, we would not want to duplicate NICE’s role or to be too prescriptive about the way in which effectiveness can be achieved. As an independent body, the commission is best placed to decide what expertise it can draw on to carry out studies under Clause 50 and what recommendations are appropriate. I hope that the noble Baroness will now be reassured about our intentions for Clause 50 and feel able to withdraw the amendment.

Baroness Cumberlege
I thank the Minister for that reply, which I find reassuring. It is nice to have it on record that the Care Quality Commission will consider all the costs and benefits. I agree that we do not want to duplicate work done by someone else. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 50 and 51 agreed to.

Baroness Cumberlege
moved Amendment No. 102:

102: After Clause 51, insert the following new Clause—
 “Competition between commissioners or providers of health care
 (1) Regulations may make provision for the Commission to undertake or promote comparative or other studies designed to enable it to make recommendations—
 (a) for establishing principles and rules relating to competition between different commissioners or providers of health care; or(b) for promoting transparency and fairness in such competition.(2) Any such regulations may provide for the publication of studies undertaken by the Commission and of recommendations arising from them.
 (3) Any such regulations must provide for the Secretary of State to have regard to the recommendations of the Commission under this section.”

The noble Baroness said: These are probing amendments. We are seeking to discover the department’s proposals for regulating the emerging NHS market. Amendment No. 102 would introduce a new clause after Clause 51 and is designed to give the regulator powers to manage emerging competition within the NHS.

I would be very interested to know whether that is the Government's intention or whether they have a different model and a different regulator in mind. Whatever the model, subsections (1), (2) and (3) of the proposed new clause will be relevant. Subsection (1)(a) seeks to establish the principles and rules relating to competition between different commissioners or providers of healthcare. Subsection (1)(b) seeks to promote transparency and fairness in competition. This is in line with our previous amendments which set out to encourage openness. Subsection (2) would enable the regulator to publish studies and recommendations in the same way as the Healthcare Commission does now, and subsection (3) would ensure that the Secretary of State paid regard to the recommendations of the regulator.

It is clearly the Government's intention to have a mixed economy within the NHS—competition between commissioners and providers within the NHS, and competition between the NHS and other providers from the private and independent sectors. Competition is seen as a tool to ratchet up quality standards and efficiency. Experience shows that there is a large body of opinion within the NHS that is ideologically against any quarter being given to the private sector. These people believe that the values of the founding fathers are being betrayed and that however good the private sector may be, it is not to meddle with the Christian socialist ethic that, whether rich, poor, black, white, young or old, healthcare should be provided free at the point of use. The Government, indeed, any Government, have an uphill struggle to change these attitudes and beliefs which are very deep in the British psyche.

When United Health Care Europe was selected to provide services in a GP practice in north-east Derbyshire, the PCT was taken to judicial review by the local people. Later the same company was successfully selected to take over another practice in central Derby. The results have been very interesting. The points awarded through the quality and outcomes framework have increased from 80 per cent to 98 per cent and the number of patients using the practice is up by 30 per cent. Neighbouring GPs who previously closed their practice lists have had to reopen them. It is evident that they have had to respond to competition in a way that they would not have done following a diktat from above.

Of course markets need to be managed and there is huge merit in the management being undertaken by an independent body, which, acting without fear or favour, will ensure a robust and fair system. It could be argued that the new CQC is well placed to take on this role since it will also control market entry and exit through registration, and has duties to ensure value for public money. I understand that at one time the Government considered giving this task to the CQC but then rowed back, and have now decided to set up their own “Co-operation and Competition” panel within the department. The title of the panel alone illustrates the complexities involved. When should co-operation be encouraged regardless of competition? When should competition be stimulated at the expense of co-operation? The two are uncomfortable bedfellows.

Understandably, the Government wish to start with a cautious approach and to feel their way, but this does beg the question: how independent is an independent regulator sitting snugly in Whitehall? Will there be pressures from down the Corridor—temptations to favour NHS services in preference to independent providers, especially with the payment by results system in operation? Is it envisaged that the new panel will set prices in the same way as Ofcom and Ofgem do now? In the long term, are the Government planning that their regulator should be an economic regulator? How will it relate to the CQC and Monitor?

However these issues are managed, it will always be essential for the regulator to assess each case openly and fairly, and for people to recognise it as a champion of public interest which is independent of the system. The proceedings, reports and findings will need to be published and made widely available.

If the Government seriously want to open up the market to competition, I think that their current approach with a departmental panel will be short-lived. There will be mounting pressure to have a freestanding body that is not only independent of government but seen to be independent, and, as we all know, perception is reality. As I have said, this is a probing amendment, and I hope that the Minister will be able to answer my questions. I beg to move.

16:00:00

Baroness Thornton
The noble Baroness is completely correct that competition and choice are powerful levers to drive up service quality, deliver better value and reduce inequalities. Indeed, that is the Government’s view. Yet they can be effective only if, as she said, there are clear rules guiding and governing behaviour in the healthcare system. I agree that developing competition principles and rules, and promoting transparency and fairness in competition, as Amendment No. 102 seeks to do, is very important. Indeed, in December 2007, the Department of Health published principles and rules for co-operation and competition as part of the NHS 2008-09 operating framework. In addition, in December, the Secretary of State made a commitment to establish a non-statutory co-operation and competition panel to provide independent advice on competition issues arising from the application of those principles and rules that have not been able to be resolved locally.

One of the functions that we currently propose for the panel is providing feedback and making recommendations to the department on how it should update the principles and rules for co-operation and competition. The noble Baroness asked how we will ensure that the panel is sufficiently independent and adequately resourced. It will have a high-calibre independent chair and operational vice-chair who can call on a range of relevant experts to resolve competition  issues in the NHS, including competition economists, lawyers, consumer advocates and procurement specialists. It is intended that the panel will be established by October 2008.

The Department of Health is currently working with a range of regulators, including the OFT, Monitor, the Advertising Standards Authority and other government departments to ensure that the panel’s approach is robust and achieves a consistency of values and approach with other regulators. We therefore see the panel, rather than the Care Quality Commission, as having the remit to advise the Department of Health on the principles of competition. This is in line with the results of our consultation on the future regulation of health and adult social care in England, which considered a role for the Care Quality Commission in competition issues. We propose that the panel has a role in advising the Department of Health and its stakeholders, such as other regulators, on competition rules, and we are establishing formal relationships between the panel and other relevant regulators to ensure that the panel operates effectively and efficiently. Once the Care Quality Commission is established, those discussions will commence.

That said, Clause 50 enables the commission to promote or undertake more general studies and make recommendations. In the course of carrying out those studies or any of its other statutory functions, the new commission may identify good practice that could inform competition rules and principles or other aspects of competition. Clause 49 constitutes a mechanism for the commission to feed such advice to the Secretary of State. I hope that I have explained our position sufficiently well to allow the amendment to be withdrawn.

Baroness Cumberlege
I thank the Minister for that reply. However, I am even less reassured because the panel is a creature of the department, and a body that will regulate competition in the NHS really should be independent. I understood her to say that the panel is not independent in that it is there just to advise the department, so who will regulate the economic side of this in the way that other regulators do?

Baroness Thornton
The panel is not a regulator; it advises the department. My understanding is that because it will have a high-calibre and independent chair and vice-chair, it will have the resources to draw on independent advice from competition economists, lawyers and anyone else it cares to ask and then put its recommendations on competition issues to the department. As the noble Baroness knows, I am very much in favour of the competition and choice agenda, and it is very likely that many people will be watching to see how this works and will see that it is reviewed in due course.

Baroness Cumberlege
I shall be one of those watching with great interest. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 52 to 55 agreed to.

Clause 56 [Inspections]:

[Amendment No. 103 not moved.]

Clause 56 agreed to.

Clause 57 [Inspections carried out for registration purposes]:

[Amendment No. 103ZA not moved.]

Baroness Jones of Whitchurch
moved Amendment No. 103A:

103A: Clause 57, page 28, line 26, at end insert—
 “( ) The Secretary of State may, after consulting the Commission, by regulations make provision specifying conditions which would result in additional inspections for the purposes of the Commission’s functions under Chapter 2.”

The noble Baroness said: The amendment builds on the concerns already expressed by a number of noble Lords, not only during the Second Reading debate, but in our discussions on the Bill, about the additional safeguards needed for those using social care facilities. It addresses the difficult issue of the frequency and circumstances in which inspections are carried out in the social care sector.

We already know that the moves towards lighter-touch regulation will further reduce on-site inspections from annual or twice-yearly to more periodic reviews. However, we continue to have an overriding duty of care to the most vulnerable people using, in particular, residential social care, who are less likely to have observant family and friends acting on their behalf and are less likely to complain about standards for fear of the consequences. This issue becomes even more critical when a wider variety of providers is entering the social care market.

The amendment would allow the Secretary of State by regulation to identify specific conditions which would trigger automatic additional inspections. This would need to be done in consultation with the commission. These conditions would be linked to circumstances in which it is known that deterioration is more likely. We already know some of those risk factors. They could include a change of ownership, a change of registered manager, adult protection proceedings on an individual who is in receipt of care at the premises, or an unexplained increase in staff turnover. Other conditions may be new factors that come to light in the application of the new provisions of the Act and the increasing competition in the market.

That is why giving the Secretary of State the powers to add conditions by regulation will provide flexibility in the application of the inspection regime in the future and will give some additional reassurance to service users and their families. I beg to move.

Earl Howe
The purpose of Amendment No. 104A in this group is simply to ask what the difference is between the inspection programmes referred to in paragraph 5(1)(a) of Schedule 4 and the document referred to in Clause 43, which will set out the frequency with which periodic reviews are to be conducted.

Lord Campbell-Savours
I intervene briefly in support of my noble friend Lady Jones of Whitchurch. I previously drew the attention of the Committee to the fact that my mother is in a nursing home and I toured a lot of homes prior to placing her there. Indeed, this weekend, I am going back to the Lake District and will probably visit a couple more homes. I feel passionately about this business of inspections. Ministers have simply failed to understand the scale of concern on this issue among many of my honourable friends in the House of Commons and among Members of this House.

The only protection and assurance that someone in a nursing home, without a relative to visit them regularly, can have regarding the quality of service provided by that home is from the knowledge that the home is regularly inspected. I strongly object to a reduction in inspections.

The theory is that because a home achieves a top score for one year, it might as well not be visited the next year because it did well before. That is a nonsense because the conditions inside that home could have changed. The manager could have changed, as could the carers, the kitchen staff, the owner of the home or the shareholding control, whereby new pressures are exerted by a new management style. I see nothing in this legislation that even begins to dismantle the arrangements recently brought in governing the inspection of these homes. All the organisations I talk to have expressed their concern. The only people who seem to have no concerns about this are in the Government.

I believe that this part of the Bill is driven by people in the Treasury who have no idea what they are talking about. If a Treasury official comes up with an idea to make an economy in the use of taxpayers’ money, it is quickly given to civil servants in order to implement a change in the legislation and thus secure that economy. It is driven through the House of Commons on the back of a whipped vote. It comes into the House of Lords and is considered in committees like this one. The only people who have an opportunity of even knowing what is happening are those who attend the Second Reading debate in the House of Commons or committee sessions here. The proposal is put into legislation and the next thing we know, we see more and more newspaper articles drawing attention to the fact that an even higher number of homes are found to be operating to poor standards. I object very strongly to any reduction in the number of inspections that take place.

My noble friend might respond by saying that there will not be a reduction. However, I do not know the source of the term used by my noble friend, “light touch”. I am sure she has taken it from somewhere. “Light touch” must be a term used by someone in authority at some point who thought that the light-touch inspection of homes would satisfy the public’s expectation of what we want to see when an inspection is carried out. I am sorry, but a light touch is not what I want and it is not what my colleagues want. I believe that Ministers should go back to their department and the Treasury and take a new look at the whole area. Again, I strongly object to what is happening.

I have tabled a Question for Written Answer to which my noble friend may have the opportunity of replying. It deals with a home in north-east England. I want to know about the inspection record of that home. What happened there, and how often was it inspected? I understand that in a state of panic it had to be closed down and people were prosecuted. So the question I have put down asks about the incidence of inspection over recent years. It will be interesting to see when the Answer comes through to what extent that home was inspected, how long it took to find out what was happening there, and why it subsequently became a scandal reported on national television.

The amendment of my noble friend is very important because in some ways it addresses the issues that I am raising.

The Earl of Onslow
It is not often that I completely agree with the noble Lord, Lord Campbell-Savours, but when we were both on the listing to look at the issue of the care of older people by the Joint Committee on Human Rights, we heard about cases of bad homes. The reasons were absolutely crystal clear. There is increasing demand for places alongside a Treasury clampdown on costs. The wages paid to people working in these homes are not high, with many on the minimum wage, and a lot of them are foreigners.

I can tell the noble Lord what light touch means. It is the exact opposite of being a recruit at Caterham Barracks and having your bed space inspected by a Grenadier Guards sergeant. He would look for every single speck of dust and check whether a touch of Blanco had been left behind. You were put on a charge if anything was the slightest bit wrong. That is the direct opposite of light touch.

If there is a tendency for standards to slip because of the pressures I have outlined, inspection standards must be high and enforced more vigorously. We all know that we are facing a very serious problem of old age. People are living longer; people are, happily, being kept alive longer; as the noble Lord said, a large number of people have no one coming to see them and no one to look after them except the people in the care home. Obviously, there is an improvement on what happened 20 or 30 years ago, but it is still not satisfactory. The fear of inspection will maintain high standards. Light touch means doing practically nothing about it.

16:15:00

Baroness Barker
I was tempted to support the amendment tabled by the noble Baroness, Lady Jones of Whitchurch. I thought about it a lot because, with some notable exceptions, in my professional life I have come across the most downright harrowing incidents of treatment of older people in residential care. Because of that, I have arrived at the view that good organisations have absolutely nothing to fear from unannounced visits but bad organisations have everything to fear from them.

Bad residential homes are often very good at passing inspection visits, because an inspection visit is only an inspection at a particular time. For example, an elderly person I know told me about a home in which a friend of hers was. She said: “It is absolutely awful. Every older person in the area knows that it is awful. You know what? One day, they got up and everyone had brand-new sheets put on their bed. We all wondered whether the people coming round might wonder why everyone had brand-new sheets on the bed, but we are not sure whether they did”. I do not have an aversion to light touch in the sense that it is proportionate, so that bad homes get frequent inspections, but the key thing is that those inspections are unannounced.

I do not question the intentions of the noble Baroness for a moment, but the second reason why I think that the amendment is wrong is that what passes for poor quality and bad practice in one home may not in another. They are people's homes; sometimes homes can be not exactly up to pristine scratch. Why? Because they are places where people live; there may be good reasons for that. The process of judging overall whether a home is, first, of good quality and, secondly, whether people are subject to abuse is quite subtle. What we really do not need is a replication of a very crude Ofsted tick-box approach. We are talking about people's lives.

I do not think that a list is right because I have not seen any evidence that the transfer of ownership of a home is necessarily an indicator of a change in practice. I am willing to be persuaded otherwise, but I have not seen it. I want an inspection regime that is effective because it is a deterrent. I very much fear that if we take the approach proposed by the noble Baroness, we may end up with an inspection approach that is very predictable. That would not serve people well. The noble Earl, Lord Howe, is absolutely right to ask his question about the documents.

This is probably one of the single most important aspects of the Bill, which will have an effect on people's lives. It is important that we have completely different inspection regimes for acute hospitals and small places; but it does not matter whether it is St Thomas’s or somewhere little, it is unannounced visits that are fundamental to and at the heart of all of this.

Baroness Howe of Idlicote
Having listened to the passion of the noble Lord, Lord Campbell-Savours, I very much agree with what he said, as well of course with the amendment, particularly because it reminds me of when I chaired a local authority investigation, on behalf both of the unions and the local authorities, into local authority care homes of all ages. We have all heard of the terrible things that are happening in many homes, and equally we all know of the marvellous things that are happening in many homes, but this problem of more and more elderly people going into care with very few people to look after their interests is not going to go away.

We all know what happens during inspections. I have served on hospital authorities and everything else, and I know that everything is cleaned up and made nice and tidy for the inspection, so I entirely support the point made about uninspected visits. Why should local authority members not be responsible for one of the homes in their area and make a friendly visit at any time of the day or night? It always struck me as very odd indeed that it is always the officials who make the inspections. I am sure that some members of local authorities do visit their homes, but if they were allocated a particular home and a particular responsibility and formed a relationship, that would be one way of looking at the whole matter. I merely throw that open to the Minister to think about. Perhaps he will take up some of the ideas.

Baroness Howarth of Breckland
I apologise to the Committee for arriving late and therefore for not hearing all the interventions. I have taken part in debates on most of the rest of the Bill, so may I be forgiven and be allowed to intervene on this amendment? I regret not having heard the noble Earl, Lord Howe, who usually informs my thinking. Perhaps he has not yet spoken.

One of my great concerns about the Bill is that we will have such regulation from the Secretary of State that the governing board and the executive of the new commission will not be able to take a strategic overview of what they find and will not be able to adapt and be flexible in their interventions and inspections in what will be a vast organisation. I speak particularly from my understanding of health and social care. I am not an expert in the health service, but I was one of the people who set up the National Care Standards Commission and who insisted that there were a number of unannounced inspections: people do now arrive on your doorstep. I am the chair of Liveability and know that at any moment you can expect someone to turn up on your doorstep on an unannounced visit, which means that you need quite properly to be on your toes most of the time.

Some information is historical. When I joined the National Care Standards Commission, I remember that we were criticised heavily for the number of homes that closed. Quite honestly, none of us would have wanted anyone whom we cared for or loved—or even if we did not love them—to live in a number of those homes. Many of them were closed, and members of the Government and the Opposition criticised what happened at that time because of the diminishing number of establishments.

At the moment, you will find on average that standards are reasonably good, if not excellent in many places. When Members have a complaint, they should ask to visit—you can visit—and ask the commission to observe the inspection. Indeed, inspections are published, so you can see what is happening. I only hope that as a result of the amendments we do not end up with a more restrictive regime that adds to the structure of the inspection, and that the new commission can put together an inspection in a way that responds to the new organisation and gives the best possible care to those for whom it will be responsible. Thank you for allowing me to intervene.

Baroness Meacher
Perhaps I may take one minute of the Committee’s time quickly to make two points. I strongly support the point made by the noble Baroness, Lady Barker. I was a Mental Health Act commissioner for about five years and from time to time visited such institutions where we would find a little thing missing or a legal point out of order. However, that was quite different when we made an unannounced visit. Then we found that someone had committed suicide because, because, because—we gained a whole raft of information on those unannounced visits. I cannot say what a difference that made to the efficacy of the commission. So, any more visiting should be of an unannounced kind.

My second point concerns the LINks that some of us talked about at great length on previous legislation. I have trouble thinking about how the LINks people are going to be affected. It may be that with the CQC, possibly being invited by the CQC to make unannounced visits on its behalf and report back, there could be a really valuable role for the new LINks. I do not need to take up any more of the Committee’s time.

Baroness Thornton
This has been an interesting debate. Members of the Committee will not be surprised to hear that I thought the noble Baronesses, Lady Howarth and Lady Meacher, put their finger on some of the key points. Both amendments deal with the inspections that the Care Quality Commission will carry out as a vital part of fulfilling its functions both to ensure compliance with registration requirements and in some cases to contribute to its review activities.

I sympathise with the intention behind Amendment No. 103 to allow the ability to set specific triggers for commission inspections, and the remarks of my noble friends Lady Jones and Lord Campbell-Savours. Neither I nor my noble friend the Minister has at any point used the term “light touch”. It is not part of the terminology that we use to describe what the Bill seeks to do, and it is not part of the regime that we are hoping the commission will establish. The person who used the right word was the noble Baroness, Lady Barker; it is “proportionate”.

A similar amendment was debated in the other place, and my honourable friend the Minister for Health was at that stage able to provide sufficient reassurance for the amendment to be withdrawn. However, I appreciate that people remain concerned that certain circumstances—for example, a change of management or ownership of the social care provider—can have a huge impact on the quality of care. But they may not have—they may improve the quality of care and could well be triggers for a new regulator to want to carry out an inspection. Other triggers might include serious incidents, staff turnover or sudden increases, which often indicate that something else is going wrong.

I understand the concern that without the commission recognising such triggers, serious problems might not be spotted. That would of course be of particular concern if inspections otherwise happened only in a fixed cycle. However, I should stress to Members of the Committee that we are certainly not intending to set fixed cycles for inspections. Indeed, we are committed to giving the regulator greater freedom to develop a proportionate approach to regulation, building on the good work of the current commission in the case of social care—

Lord Campbell-Savours
I thank my noble friend for giving way. In many documents, articles and journals of organisations involved in the care of the elderly, my noble friend will have seen reference to the fact that the resources to be given to the inspectors are to be reduced. Is that true?

16:30:00

Baroness Thornton
Part of the original reason for this exercise was to make savings, but those savings have already been made by the existing organisation. So the answer to the noble Lord’s question is, in fact, no. There is no intention to reduce the resources that will be available to this organisation to build its work.

Lord Campbell-Savours
If the cuts have already taken place—I presume they are cuts, because if the reductions have already taken place, they are cuts—are we seeing an increase in the number of complaints arising out of those reductions?

Baroness Thornton
I do not know the specific answer to that question, but I do not think that that is the case. We have three regulators who do an excellent job and through CSCI’s work in social care, for example, it is the intention that its methodology will be used to inform the inspections that take place under the new regime. The development of its work will very much inform what will happen next.

Lord Campbell-Savours
I have another question to which I know the Minister will not have the answer to hand, but perhaps she can ask her officials to establish what it is. What has been the saving to date arising from the reduction in the inspectorate or those responsible for inspecting? What moneys have already been saved and are likely to be saved over 12 months?

Baroness Thornton
I can make those figures available to my noble friend but I do not have them in front of me.

Lord Campbell-Savours
Thank you.

Baroness Thornton
The noble Lord might get them quicker than he expects. I return to the question, the Bill allows the commission to focus its inspection activity where it is most needed. Let us not forget that the Bill in Clause 2 makes clear that the commission must in everything that it does pay particular heed to the need to safeguard the rights and welfare of vulnerable people. It is highly likely that as part of its methodology the commission will want to develop a sensitive range of triggers for a range of different settings and, indeed, we would encourage it to work with staff, Unison, other unions, residents and relevant organisations and others to develop this.

I really do believe that if the commission is to be the independent, intelligent regulator that we all want it to be, it is vital that there is flexibility to develop this methodology and not set it in secondary legislation—or to involve the tick-boxes that the noble Baroness, Lady Barker, mentioned. After all, as the nature of services evolves, we would like the commission’s methodology to evolve, and while it is tempting to specify particular triggers for inspections, doing so could unwittingly tie the commission’s hands or cause it to devote less attention to emerging risk factors.

Amendment No. 104A probes the purpose of one of several provisions in the Bill designed to maximise coherence and transparency for all those with an interest, particularly the providers who are being regulated. The provisions for the commission to have inspection programmes and inspection frameworks mirror provisions for other public sector inspectorates. For example, Ofsted’s chief inspector and the Audit Commission are each required by the relevant primary legislation to produce “inspection programmes” and “inspection frameworks”.

Similarly, a separate document setting out the planned frequency of the commission’s reviews provided for in Clause 43 will be informative to those who are being regulated. Noble Lords will appreciate that knowing how often you are likely to have comparative information published about you in a review and what additional reporting this might involve is important to a provider. Periodic reviews, special reviews and investigations will draw on existing sources of information and, wherever possible, minimise the burden of the reviews to the providers. The current regulators have developed methodologies that help them to achieve exactly this. That said, because a review might involve some inspection activity, there is a link between the commission’s periodic reviews and its inspection programmes.

Noble Lords will also note that under Clause 77, the commission will similarly publish its programme of other reviews and studies. It is important that each of these different areas of the commission’s responsibilities is made transparent. Each of these documents will, therefore, play a role in ensuring that service providers understand the wider work programme that the commission will undertake and they will help to reduce the burdens on front-line providers. In principle, I see no reason why the commission would not combine one or more of these into a single document. If the commission felt that it could still fulfil its responsibilities in this way, that would be a decision it would be able to take.

Nothing in these requirements prevents the Care Quality Commission making unannounced inspections, as sub-paragraph 5(5) makes clear. I hope the Committee will appreciate that these provisions are intended to help the relevant regulators minimise burdens on the front line by enabling them to co-ordinate their respective activity. They also provide clarity for providers so that they understand what level of inspection activity they might expect and when. I hope that with those assurances my noble friend will feel able to withdraw the amendment.

Baroness Jones of Whitchurch
I thank the Minister for those comments but wish to clarify a couple of points that have been made in the debate. I did not suggest that we should move away from unannounced visits. At the heart of what I was proposing was the idea that we should retain what we have at the moment; namely, unannounced visits, primarily with inspectors trained to ask the right questions and to probe the right issues when they appear on premises. We are trying to retain that in the amendment. I take the point made by the noble Baroness, Lady Barker, that a home is a home and sometimes people like it to be organised in different ways, but key to all that is to talk not to the people who run the home but to the residents. There is a skill involved in doing that but I believe that our inspectors are trained to ask the right questions, to make residents feel at ease and consequently to find out what they really think about where they live. If they are happy with their home, that will come across and there should be no further worries.

The other point that was raised—it has been raised on several occasions—concerned the overuse of tick boxes. I am worried that the Government propose to move away from on-site inspections to an increased use of form filling whereby people will be able to tick boxes and self-justify their activities. I am still not clear whether the Minister is saying that, having gone through a whole series of cuts, inspections will not be cut further. If she is saying that, I shall feel slightly reassured and would be prepared to withdraw the amendment. However, I would like further clarification on whether we shall retain the current level of on-site inspections, which is what I intended my amendment to deliver. However, I thought that I had made a neat compromise that went some way to accommodate what the Government are trying to do. I seek clarification on that.

Baroness Thornton
There is no intention to reduce inspections. It is intended that the commission will use the excellent practice of the existing commissions, particularly CSCI, to inform its work. It is certainly our intention that it will use spot checks, where necessary, and that it will adopt an intelligent approach which will allow inspections to be triggered by an emergency.

Baroness Jones of Whitchurch
On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clause 58 agreed to.

[Amendment No. 104 not moved.]

Clauses 59 to 62 agreed to.

Schedule 4 [Interaction with other authorities]:

[Amendment No. 104A not moved.]

Schedule 4 agreed to.

Clauses 63 and 64 agreed to.

Clause 65 [Co-operation between the Commission and Welsh Ministers]:

Baroness Thornton
moved Amendment No. 105:

105: Clause 65, page 32, line 26, at end insert—
 “( ) The Commission and the Welsh Ministers may share information with each other for the purposes of subsection (1).”

On Question, amendment agreed to.

Clause 65, as amended, agreed to.

Clause 66 [Co-operation between the Commission and the Independent Regulator of NHS Foundation Trusts]:

Baroness Murphy
moved Amendment No. 106:

106: Clause 66, page 32, line 45, at end insert—
  “(4) Where the Commission serves a warning notice on a registered service provider that is an NHS foundation trust or on a registered manager of an NHS foundation trust, it must, as soon as practicable afterwards, provide a copy of the warning notice to the Independent Regulator together with its recommendations, if any, for the appropriate action to be taken by the NHS foundation trust to rectify the failures.
 (5) Where the Commission has provided a copy of a warning notice to the Independent Regulator pursuant to subsection (4)—
 (a) the Independent Regulator shall take all necessary and reasonable steps to ensure that the NHS foundation trust rectifies the failures set out in the warning notice in accordance with any requirements set out in the warning notice, including if necessary by using its statutory powers of intervention; and(b) where the NHS foundation trust fails to comply with the requirements, if any, of the warning notice (whether or not the Independent Regulator has used its statutory powers of intervention) the Commission shall only be entitled to—(i) exercise its powers under section 13 (cancellation of registration) or 14 (suspension of registration),(ii) take proceedings under section 29 (failure to comply with conditions), or(iii) take any other action against the NHS foundation trust in respect of the failure,with the prior approval of the Independent Regulator.(6) The Commission shall not serve a notice under section 27 (urgent procedure for variation, suspension etc.) on a registered service provider that is an NHS foundation trust or on a registered manager of an NHS foundation trust without the prior approval of the Independent Regulator.
 (7) Where the Commission serves a notice under section 27, it will as soon as practicable afterwards provide a copy of the notice to the Independent Regulator.
 (8) For the avoidance of doubt, nothing in this section shall affect the powers of the Commission under section 26 (urgent procedure for cancellation).”

The noble Baroness said: This amendment seeks to resolve the crucial relationship between the new Care Quality Commission and Monitor, the independent regulator of NHS foundation trusts. Grouped with it is Amendment No. 212, to which I shall return later, which addresses Monitor’s current status. First, I must declare a personal interest as a member of the board of Monitor. This is also an opportunity for me to express my admiration for the rigour and quality of the regulatory regime that Monitor has established. Unfortunately, I cannot claim to have contributed much to it personally, since it was set up well before I joined the board. However, it bears witness to the superb work of the chair and chief executive, Bill Moyes, and his inspiring team of executives, most of whom come from outside the health service but all of whom feel passionately about improving the quality of care in the NHS.

As the Bill stands, it could damage the accountability arrangements for NHS foundation trusts and weaken the effective regulatory regime currently in place. It introduces a second regulator of NHSFTs with overlapping intervention powers and blurs the clarity of the accountability arrangements, putting at risk the success that Monitor has had to date. I should remind noble Lords that just under 90 of the 220 NHS trusts are now foundation trusts, and it is expected that all trusts will become foundation trusts quite quickly. The success of FTs reflects on the effectiveness of the regime in which they operate, and indeed the regime has proved its effectiveness by identifying and ensuring the correction of failings in both service and financial performance.

There are well known examples such as the Bradford hospitals and UCLH as well as quiet interventions that are not so widely known publicly where major board changes have effected improvements in governance arrangements. I refer to Peterborough, Moorfields Eye Hospital and several others. Surely it would be better to build on the existing successful approach taken by Monitor and the Healthcare Commission working together. In the current arrangements, the HCC uses its clinical expertise to assess compliance with core standards and identify failures. It is, however, for Monitor to ensure that NHS foundation trusts address these failures and intervene if necessary.

I am not convinced that Ministers have understood what it is that Monitor does. Monitor is not simply an authorisation regime, although it is rather famous for the rigour of its authorisation process. In fact, its main function is that of an ongoing compliance organisation because compliance monitoring is its primary activity. We monitor how finances are managed and, crucially, quality as evidenced by performance against targets set by the Government, and the delivery of quality standards established by the Healthcare Commission. We do not monitor quality in order to assess the governance capacity of the board, as I believe Ministers may think. In fact it is exactly the opposite. We monitor on a quarterly rolling programme which has predictive value, whereas the Healthcare Commission collects aggregate quality data at the end of the year. The pragmatic collection of predictive information has the potential for use as a tool for improvement. There is no conflict at all here; rather there is total complementarity between the way Monitor works to assess predictively how quality is being upheld, along with the Healthcare Commission’s assessment at the end of the year.

Monitor has run an exercise to look at what would have happened if, for example, Maidstone and Tonbridge Wells NHS Trust had been a foundation trust. Would its compliance regime have picked up earlier what was happening? Indeed, it would have done so. We believe that we would have known considerably earlier that the trust was in deep trouble with regard to the development of its MRSA and C. diff. problem. Monitor’s wide-ranging powers are much more useful in securing improved performance in NHS foundation trusts, and indeed in all trusts, than the powers being proposed for the CQC, which are essentially limited to the issue of warning notices, fines, the closure of services, and of course the pressures that we know all regulatory bodies can exert through personal influence.

16:45:00

The government policy document The Future Regulation of Health and Social Care in England: Response to Consultation see out clear arrangements for Monitor and the CQC working together, yet this position is not reflected in the Bill. The issue is that in providing the CQC with intervention powers that cut across NHS foundation trusts, the Bill creates a situation where NHS foundation trusts face two regulators with overlapping powers and no clear accountabilities or boundaries to their responsibilities.

The Bill needs to be amended so that there is clarity in the roles and responsibilities of the two organisations in relation to FTs. This should be addressed in the legislation. Only one regulator should be accountable for foundation trust performance. Having two regulators will not work. It would lead to confusion, duplication and delay; and there would be arguments about who intervenes on what account. There should be one regulator clearly accountable for performance.

There are strong arguments for Monitor retaining the primary accountability for NHSFTs. It is the only body that is able to take a broad view of FTs’ performance covering both service quality and financial performance. It is no good saying that you have a problem in one area and discovering that there is not sufficient money going in from the primary care trust to effect anything like the quality that is required and that the trust has no ability to manage the finances in a particular area. Monitor has wide-ranging powers to address failings, from requiring particular actions, such as the withdrawal of a service, to replacing the board of directors. Changing the regime merely introduces unnecessary risk.

The Government have argued that to provide a level playing field all providers must meet the same standards and face intervention by the same body. While I agree that common standards are crucial, I see no reason why the same body must be responsible for enforcement. The regulatory regimes for the different types of providers are simply different and we should seek the arrangements that provide the clearest lines of accountability and the best prospects of success.

The amendment would provide for a clear, single line of accountability and ensure that NHS foundation trusts were assessed for their compliance with registration requirements by CQC in the same way as any other registered providers. Monitor and the CQC would work together on who was to issue the warning notice and who was to intervene, and the CQC would be responsible for intervening to rectify identified failings, just as the Healthcare Commission does now.

I accept that in the most serious cases, where there is serious risk of harm, the CQC would still be free to seek an urgent cancellation of an FT’s registration by order of a JP. That seems to us entirely proper. The CQC would seek Monitor’s support and approval before imposing an urgent suspension or variation on an FT. This would ensure that it could not circumvent the role of the independent regulator. The power currently provided in the Bill is drawn extremely widely and at the discretion of the CQC. It would be possible to replicate the existing, successful arrangements that Monitor and the Healthcare Commission have put in place without jeopardising the role of the CQC, which is so vital to this new regime.

Some of the points made during the Second Reading of the Health and Social Care Bill added to my concerns. The noble Lord, Lord Darzi, in his winding-up speech recognised that the relationship between Monitor and the proposed Care Quality Commission is an issue, but he did not address the key concern. There seems to be a lack of understanding at departmental level that Monitor is first and foremost a compliance organisation.

I know that there have been attempts behind the scenes to produce a way forward, which has not yet been achieved. I very much hope that the Government will continue to seek some resolution to what we see as a most important and difficult issue for an effective regulatory regime.

Briefly, Amendment No. 212 is something of a minority interest. Monitor’s current status is that of an executive non-departmental public body, despite the Government’s stated intention in 2003, during the passage of the Health and Social Care (Community Health and Standards) Bill, that the independent regulator should be a non-ministerial government department. To give the Committee chapter and verse, the noble Baroness, Lady Andrews, stated in Committee on 13 October 2003:

“The office of the independent regulator would be a non-ministerial department”.—[Official Report, 13/10/03; col. 620.]

Further, in answer to a Written Question on 16 October 2003, John Hutton answered that Monitor would be established as a non-ministerial government department. Also, as Members will be aware, the Government’s report, entitled Reconfiguring the Department of Health’s Arm’s Length Bodies, published in 2004, reconfirms very clearly the Government’s commitment to establish Monitor as a non-ministerial government department. It said:

“When a suitable legislative opportunity arises, the Regulator will be formally established as a Non-Ministerial Government Department. This is a technical change and will not have a significant impact on the current organisational arrangements”.

Monitor’s current status results from the erroneous inclusion of paragraph 16(1) of Schedule 2 to the Health and Social Care (Community Health and Standards) Act 2003. Unfortunately, the inclusion of the paragraph, which I shall not quote from now, meant that the Cabinet Office could not classify Monitor as a non-ministerial government department. However, there have now been two opportunities in legislation to amend this. The amendment would give Monitor the status that was originally intended.

Why is Monitor so fussed about this? In practical terms, its independence from the Department of Health—in some ways, of course, everyone needs a responsible Minister to report to—would effectively put Monitor’s position beyond doubt and on a level footing with other established regulators such as the Food Standards Agency, the Charity Commission and Ofsted. The main purpose of the amendment is to try to understand why the Government have resisted doing what they said they would do. Is this, as I suspect, because of the resurgence of the centralising tendencies in the past few months? Is that why we have never achieved the status that we were promised? Is there a shifting attitude, which we have heard in some small measure in the past days of this Committee, to the powers that the Secretary of State will have in relation to the CQC? I wonder whether the Minister can reassure me if I am wrong. I beg to move.

Baroness Meacher
I strongly support the purpose behind Amendment No. 106, which was moved so ably by my noble friend Lady Murphy and to which I added my name. It is important to see the amendment as a probing amendment, because I do not think that any of us feels that we necessarily have the words precisely right. I spoke about this at Second Reading very much from my experience on the receiving end of the services of Monitor. I shall not repeat what I said then, but I do want to make a few points.

It is significant, and perhaps rather shocking, that the consultation document, the subtitle of which is “The future regulation of health and adult social care in England”, makes little mention of Monitor, the independent regulator of nearly half the provider health trusts in this country. I checked this with the Bill team and with Monitor, and I think it is true to say—have you found it since, then?—that none of us could find any reference to it. If someone has found a little reference to it, it is obviously very well hidden away. None of us could find it the other day.

This lack of attention suggests that the potential confusion and double jeopardy in the future system were not adequately taken into account by those people who planned this legislation. No one anticipated the serious issues which could arise when a failing trust finds itself under scrutiny by two regulators who will be fighting between themselves about whose warnings, and sanctions should be used to bring the trust into line. What a time to have confusion.

I understand that the noble Lord, Lord Darzi, fully understands the risks of this double jeopardy and the need to do something to avoid potential problems. But why does this issue give rise to such concern? It is that we risk damaging what in my view is the best regulatory system that the NHS has ever had. That is rather a strong comment to make, but I have been around, in and out of this system, for about 25 years. 

The system of regulation by Monitor is incredibly effective, in my view, not only in ensuring the financial viability of the trust, as the noble Baroness, Lady Murphy, said, but also in raising standards. I will not repeat the extraordinary impact on my own trust of raising standards—I covered all that on Second Reading. Therefore, for me, this is the first time that the regulatory system enables high-flying managers to get on with the job, to think laterally and to innovate without the dead hand of bureaucracy eliminating all initiative. I have to say that that is how it has felt to me, as a member of boards in the NHS for many years.

I cannot overemphasise the importance of that aspect to the quality of services that the NHS is going to provide over the years ahead. It is the more important when foundation trusts will, as we know, become the norm in the NHS as regards providers. If a board underperforms, I am clear that Monitor will micromanage the organisation until the Government’s failures have been put right. But if a board does well, if the financial position is strong and if reports from service users and the Healthcare Commission show that services are good and improving, Monitor will take a careful view, monitoring quarter by quarter how it is doing, and pick up any change. My trust is under obligation to report to Monitor any significant change in it: for instance, a change of chief executive; a change of chair; a difference in our financial systems; and a poor report from the Healthcare Commission on a particular aspect of our service. If it did not report those matters to Monitor, it would be seen to have failed and it would come under very close scrutiny. We are left in no doubt about those things. It is therefore a very robust system when it needs to be, which to me feels right.

I want also to emphasise that the relationship between Monitor and the Healthcare Commission appears to work well. From the receiving end, you do not get a sense of confusion in those bodies. But the CQC will have more powers than the Healthcare Commission. I have no objection to that in principle, but the work of Monitor risks being undermined if the powers of the two bodies are not clarified in the legislative framework. It would be a shame if the legislation were to undermine the highly successful regulatory system put in place by our Labour Government. So far, we have suggestions that the CQC will have the power to consult various organisations. That, in relation to Monitor, would be disastrous. We know that consultation means that you talk and listen to people, but then you can go away and ignore what they have said. I would therefore be most grateful if the Minister would today assure the Committee that either in the Bill or in regulations—one or the other, it is not frantically important, but it would be nice to have it in the Bill—there will be a clear provision to ensure that Monitor’s powers are protected. It should be made clear that the CQC and Monitor are equal and that their powers should be clearly different and complementary.

17:00:00

Baroness Thornton
I absolutely agree with the noble Baronesses, Lady Murphy and Lady Meacher, that Monitor has done a fantastic job in driving improvements in foundation trusts and that the Care Quality Commission and Monitor need to work closely together to ensure that these closely related but distinct roles can be fulfilled.

I reassure the Committee that the Bill already provides for those two organisations to share information and co-ordinate their efforts. The provisions mean that the amendment is unnecessary. The first part of the amendment would require the commission to send a copy of any warning notice it served on a foundation trust to Monitor as well. Clause 35 already provides for this. In addition, Clause 66 requires the commission and Monitor to co-operate to carry out their respective functions. In particular, it states that the two organisations must share information with each other. Together, Clauses 35 and 66 will ensure that Monitor is aware of any concerns that the Commission has in relation to a foundation trust.

Clause 66 requires no further amendment to achieve an effective working relationship between Monitor and the Care Quality Commission—which is, after all, what we all want; it is essential. We would like them to work out for themselves what that relationship would look like, in the same way that the Healthcare Commission and Monitor developed their own successful working relationship, although we would expect it to be similar to the arrangements in the future regulation of health and adult social care in England consultation document.

Furthermore, what especially concerns me is that the amendment risks confusing the different roles of the commission and Monitor. The commission is being established to ensure that all providers of health and social care services maintain the required levels of safety, service quality and governance. Monitor’s specific role is to ensure that foundation trusts are financially strong and demonstrate the quality of governance to operate autonomously as public benefit corporations.

In that context, the amendment significantly weakens the Commission’s enforcement powers. It is vital that the Commission has strong enforcement tools that it can exercise independently and swiftly when necessary to ensure the safety and quality of all services. For example, when the commission responds to a safety or quality failing with a warning notice, the NHS foundation trust will be responsible for delivering the necessary improvements. Monitor will work with the NHS foundation trust to ensure compliance, because it will be concerned about the impact of enforcement action on the NHS foundation trust’s ability to operate. Monitor’s powers of intervention are available and will be used if required. If the provider fails to correct the problem, the commission, taking account of advice from Monitor, may undertake further enforcement action to protect patients using the services.

Turning to Amendment No. 212, Monitor is an independent body corporate established under the Health and Social Care Act 2003—consolidated by the NHS Act 2006—to authorise NHS foundation trusts and oversee their operation within the statutory framework for foundation trusts. The amendment would make Monitor a Crown body, changing Monitor’s classification from non-departmental public body to non-ministerial department status.

We do not support the amendment; I cannot satisfy the noble Baroness. NDPB status gives Monitor independence within its remit while maintaining strong public accountability to Parliament via the Secretary of State. As an NDPB, Monitor has established a reputation for its independence, competence and rigour that is widely recognised. Its classification has not compromised the way in which it operates. We are not aware of any scrutiny of Monitor’s independence nor has its classification become a matter of public concern.

Subject to legislation, the CQC will be established as a non-departmental public body. That is the most appropriate structure for that organisation and we do not think it is appropriate to have differing arrangements for the CQC and Monitor. I therefore ask the noble Baroness to withdraw the amendment.

Baroness Cumberlege
Before the noble Baroness does that, would the Minister enlighten me a little? In this part of the Bill we have very few friends. Normally when we have a Bill there is a body of people who say, “Yup, what you’re doing is absolutely right”, but it has been hard to find that constituency with regard to merging these three bodies. In opening, the noble Baroness, Lady Murphy, said that here we have two regulators with no boundaries and with overlapping powers. We have a situation that could end up in quite a muddle. I take the points that have been made about people knowing exactly who is going to regulate and who is going to do what. I wonder if the Minister thinks that this is an area where the two bodies should get some guidelines together so that everyone knows exactly who is doing what and when.

Monitor has been sensationally good. When one sees the amount of fear and anxiety there is about doing well in the people who are going before Monitor in order to become a foundation trust, including among the non-executives, one can see why it has been such a good regulator. If all the institutions become foundation trusts, do we have an opportunity here for Monitor to regulate the hospitals so that more of the work for social care could be in the remit of the new Care Quality Commission? That could go some way towards welcoming some of the thoughts that have been put to the Minister throughout Committee about the separation that we already have.

Baroness Thornton
The fact that Monitor merited two clauses in the Bill shows that the Government recognise the importance of getting this right. Legislation is only part of the story, though, and Monitor and the Care Quality Commission will need to work out in detail how to work together and how to ensure that they do not fall over each other, that they are both effective and that Monitor can continue to be the powerful regulator that it already is.

Baroness Meacher
Does the Minister accept that at the moment the assumption seems to be that all the power will be with the CQC and that it will be for the CQC to consult with Monitor, rather than seeing these two bodies as equal regulators with different responsibilities? I strongly respect the views expressed by the noble Baroness about the value of trying to separate these responsibilities entirely; it would make so much sense.

Baroness Thornton
It is essential for public assurance that the Care Quality Commission takes the same approach to all types of provider. That is our starting point. It is not a question of who is more or less equal, but of how you make both bodies work effectively together. The existing legislation sets out Monitor’s statutory powers to intervene, and the new legislation will give the Care Quality Commission statutory powers to apply sanctions. The two bodies have to work out how best to apply the best of what they do.

Baroness Murphy
Before I address the body of the Minister’s response, when was it that the Government changed their mind about their intentions for the status of Monitor?

Baroness Thornton
I am not sure I know the answer to that. I will have to reflect. There have been, I think, three or four Secretaries of State since then. I will write to the noble Baroness.

Baroness Murphy
I thank the Minister for that response. There is no doubt that there have been many discussions, and I know that Bill Moyes, the chairman of Monitor, has met the noble Baroness, Lady Young, on a number of occasions to discuss how they are going to work together. It is crucial that we are clear how this is going to work. It has the potential to create really serious problems, not just for foundation trusts but for both regulators. That is something which the Government should follow with interest when the Bill is enacted.

I will be frank and say that I have no intention of bringing this issue back at the Report stage because it would not be fitting—all regulatory bodies are ultimately accountable to the Government for what they do. But I believe that it is utterly crucial that the regulators should sit down together and produce clear guidance to make it absolutely clear to everyone how this is going to work, thus ensuring that there is no confusion. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clauses 67 to 76 agreed to.

Clause 77 [Publication of programme of reviews etc.]:

[Amendment No. 107 not moved.]

Clause 77 agreed to.

Clause 78 agreed to.

Clause 79 [Reports for each financial year etc.]:

[Amendments Nos. 108 and 109 not moved.]

Clause 79 agreed to.

Clauses 80 to 83 agreed to.

[Amendments Nos. 109A and 109B not moved.]

Clause 84 [Guidance by the Commission in relation to enforcement action etc.]

Clause 84 agreed to.

Clause 85 [Publication of information relating to enforcement action etc.]:

[Amendment No. 110 not moved.]

Clause 85 agreed to.

Clauses 86 and 87 agreed to.

Clause 88 [Unincorporated associations]:

Baroness Barker
moved Amendment No. 111:

111: Clause 88, page 43, line 8, after second “the” insert “trustees of the”

The noble Baroness said: I shall speak also to Amendment No. 112. These amendments echo the confusion evident in our debates on Clauses 29 and 30 about exactly who is deemed to be responsible when offences take place. They have been tabled separately because this clause applies solely to charitable bodies—I believe that that is the case when we talk about unincorporated associations. Before I get down to the specific detail, I want to ask a broad question. Can the noble Baroness explain to the Committee what sort of unincorporated association she believes would be likely to be undertaking regulated services? I assume that she means small residential establishments and so on.

The two detailed questions I want to ask are reflected in the amendments. First, the clause appears, for the purposes of offences under this Bill, to treat unincorporated associations as though they are in fact corporate bodies. I want to ensure that we are not overriding some of the basic tenets of charity law in this legislation. I quite understand that it is not the members of the association whom the Government want to be criminalised, but I should have thought that the trustees of the association should bear responsibility.

My second point is about payment of fines. I quite understand that the Government may want to enable unincorporated associations to pay fines from their charitable funds if that were deemed to be appropriate. I do not quite understand why they want to insist on that, rather than leaving it to be judged case-by-case, where it would be evident whether the offence had happened because of the deliberate policy as determined by the trustees of the association or as a result of an action of an employee in contravention of the trustees’ policies. That is the sort of issue that normally arises with charities. I do not quite see how what the Government are trying to do is consistent with the tenets of charity law. I seek clarification on that. I beg to move.

17:15:00

Baroness Thornton
I hope I make a better fist of explaining this amendment than the previous one, but I cannot guarantee it.

I understand that unincorporated association status is usually chosen when a number of individuals agree or contract to come together for a common purpose, which may be of a social nature. Those organisations are usually run informally and are common in the voluntary sector. The noble Baroness is absolutely right: a management committee is elected to run the organisation on behalf of the members. Unlike limited companies, unincorporated associations have no separate existence from their individual members. The association itself has no legal rights, as it is not perceived as a separate entity; nor can an association be convicted of a common law offence.

However, an unincorporated association can be liable for a statutory offence. The purpose of Clause 88(1) is to make it clear that offences under the Bill may be committed by an unincorporated association. That ensures that in cases where the fault lies with the organisation, rather than any one individual—or if the organisation is liable vicariously for the actions of its employees—the association will be prosecuted. That will be the same for corporate bodies under Clause 87. Nevertheless, where an offence has been committed with the consent or connivance of an officer or member, then they, as well as the association itself, are liable for proceedings to be brought against them. The wording of Clause 88 is based on existing legislation, such as Section 207 of the NHS Act 2006.

As an unincorporated association is not a legal entity, its assets will be held by members as trustees on behalf of the association. However, it is not appropriate that proceedings should be brought against the trustees of the association, who may be individuals with no responsibility for the actions in question. Any fine subsequently imposed will be paid by the trustees but with the association’s funds. In other words, the association will be found liable and the fine will come out of the association’s fund.

Amendment No. 112 appears to be designed to allow for individual officers and members of an association to be liable for payment of fines, as well as the association itself. The amendment is unnecessary as Clause 88 already makes provision for individual officers or members to be liable if an offence is committed with their consent or connivance. Where proceedings are taken against an individual officer or member, they will be personally liable for any fines.

I thank the noble Baroness for tabling the amendments and giving me the opportunity to explain the Bill’s provisions; I hope that she will be content to withdraw the amendment.

Baroness Barker
I thank the Minister for that thoughtful and considered answer. I am glad that she confirmed that my knowledge is still up-to-date. Trustees of an unincorporated association are jointly and severally liable for offences if they behave in a way that is imprudent or knowingly unlawful. It is precisely because trustees need to be clear about their responsibilities that it is important to state in legislation that they have that responsibility whether or not they are incorporated. The standard of judgment may be the same, but they retain that responsibility.

I see the point that the Minister is making: where an officer is found to be acting in contravention of the organisation's policy, they too can be sued, but her answer confused rather than clarified the position of unincorporated associations. However, I realise that this is a minority sport in the Committee. I am happy to take the issue away; perhaps we can clarify it in correspondence later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112 not moved.]

Clause 88 agreed to.

Clause 89 agreed to.

Clause 90 [Electronic communications]:

[Amendment No. 113 not moved.]

Clauses 90 agreed to.

Clause 91 agreed to.

Schedule 5 [Further amendments relating to Part 1]:

Baroness Thornton
moved Amendment No. 114:

114: Schedule 5, page 134, line 22, leave out paragraph 48 and insert—
 “48 For section 143 of the 2003 Act substitute—
  “143 Use by Welsh Ministers of information
 (1) The Welsh Ministers may use any information they obtain, or documents produced to them, in the course of exercising any function of the Welsh Ministers referred to in any paragraph of subsection (2) for the purposes of any function of the Welsh Ministers referred to in any other paragraph of that subsection.
 (2) The functions of the Welsh Ministers referred to in subsection (1) are—
 (a) their functions under Chapter 4 of this Part;(b) their functions under Chapter 6 of this Part;(c) their functions exercisable by virtue of section 5(b) or 8(1) to (3) of the Care Standards Act 2000;(d) their functions under section 80 of the Children Act 1989;(e) their functions under the Mental Health Act 1983 in their capacity as the regulatory authority (within the meaning of that Act);(f) any functions exercisable by them by virtue of paragraph 163(1) of Schedule A1 to the Mental Capacity Act 2005.(3) References to functions in subsection (2) do not include functions of making regulations.””

On Question, amendment agreed to.

Baroness Thornton
moved Amendments Nos. 115 to 116A:

115: Schedule 5, page 138, line 27, at end insert—
 “Local Government Act 1999 (c. 27)In section 25 of the Local Government Act 1999 (co-ordination of inspections etc.), in subsection (2)(e), for “Commission for Social Care Inspection” substitute “Care Quality Commission”.”

116: Schedule 5, page 138, line 39, at end insert—
 “Regulation of Investigatory Powers Act 2000 (c. 23)In Schedule 1 to the Regulation of Investigatory Powers Act 2000 (surveillance authorisation: relevant authorities), for paragraph 20F substitute—
 “20F The Care Quality Commission.””

116A: Schedule 5, page 138, line 39, at end insert—
 “Freedom of Information Act 2000 (c. 36)In Schedule 1 to the Freedom of Information Act 2000 (public authorities), in Part 6 (other public bodies and offices: general)—
 (a) omit the entry for the Commission for Healthcare Audit and Inspection and the entry for the Commission for Social Care Inspection, and(b) at the appropriate place insert—“The Care Quality Commission.””

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clauses 92 and 93 agreed to.

Schedule 6 [The Office of the Health Professions Adjudicator]:

The Earl of Onslow
moved Amendment No. 117:

117: Schedule 6, page 142, line 26, at end insert—
 “(3) The OHPA shall have regard to the desirability of improving the awareness of, and training in, human rights of its members.”

The noble Earl said: I am afraid that the Committee has me instead of the noble Baroness, Lady Stern. I apologise for that. When the Joint Committee on Human Rights inquired into how the Human Rights Act affected people in old people’s homes, I initially thought that it was nothing to do with them; we were going off on a tangent and it was an unnecessary inquiry. However, I was eventually dragged around to the view, which I have now accepted, that it is important that the Human Rights Act should be part of the care of old people.

Those in the nursing profession told us that they had had practically no training on this subject, and that this was a lever they could use to make things better. All I am doing here on behalf of the noble Baroness, Lady Stern, in whose name the amendments is tabled, is asking that something to the effect of this collection of amendments should be in the Bill. I am sure the Government will say that it is unnecessary, because they have already said so. We do not agree with them because, it says in my brief, it was suggested that knowledge about how to use these rights to provide a better service to patients and service users was extremely limited. If we could have this in the Bill, it would help a little; it would ensure that these things are understood and, above all, that people are properly trained to use them. That would make things generally better all round and is a good idea. I beg to move.

Baroness Thornton
I feel I should mark the fact that we have now reached Part 2 of the Bill, which deals with the reform of professional regulation. Since this is a brand new topic for the Committee, I thought I would say a few words before I address the issue raised by the noble Earl—and it is a delight to have him with us again.

As noble Lords know, in recent years there have been a number of high-profile inquiries, such as the Shipman inquiry, into doctors who have harmed their patients. These inquiries have highlighted serious failings in the system of professional regulation and undermined the confidence of patients and professionals in the existing system. The Government have looked carefully at the recommendations of those inquiries, which have informed how professional regulation for all health and social care professionals should and could be modernised and improved more generally. Consultation resulted in a White Paper, published in February last year. The Bill carries forward the primary legislative elements of that White Paper. Before we go into detail on the measures in Committee, I emphasise that they are only part of a wider reform programme.

The amendments spoken to by the noble Earl—Amendments Nos. 117, 138, 154, 157 and 160—deal with a number of matters raised in the eighth report of the Joint Committee on Human Rights, which were tabled by the JCHR on Report in the other place and debated at that point.

The Government recognise the need to improve human rights training and to embed human rights in the training and induction programmes of all staff in health and social care. The Joint Committee set us the task of reporting at the Committee stage in this House on what progress we are making, and I hope that I will be able to do so. As the Joint Committee acknowledges in its report, The Human Rights of Older People in Healthcare, the department has taken steps to address these issues. We have published a report entitled Human Rights in Healthcare—A Framework for Local Action and we have undertaken pilots with five trusts. The pilots will be independently evaluated and, after that assessment, we will decide how to take recommendations forward.

The Government agree that the regulatory bodies responsible for the basic education curricula and codes of professional ethics should consider how best to ensure that healthcare professionals understand their responsibilities. We have set up seven expert working groups to advise on the implementation of the White Paper, Trust, Assurance and Safety, and we expect two of those working groups, the Medical Education and Revalidation Working Group and the Non-Medical Revalidation Working Group, to look at this important area.

In preparation for that major piece of work, we have already written to key stakeholders, including the Council for Healthcare Regulatory Excellence, the health regulatory bodies, the strategic health authority education commissioners, Universities UK, the Council of Deans of UK University Faculties for Nursing and Health Professions and the Medical Schools Council to seek their advice on how best to take forward this agenda.

Of course, in looking at what more needs to be done, it is important to recognise the good things that are already happening. Health and social care professionals currently receive training on human rights as part of their academic studies. Regulatory bodies already include references to human rights issues in their ethical guidance. For example, the framework for undergraduate education of dentists refers to the Human Rights Act, and the document Standards for Dental Professionals has a section on—

The Earl of Onslow
May I interrupt the Minister? That rather goes against the impression that I got—that we got—in the hearing; that the professional bodies were not aware of it. The cliché “twixt cup and lip” immediately leaps to mind. Something does not seem to be working quite right there. That is why we want it in the Bill.

Baroness Thornton
We looked at the last report where the committee expressed its dissatisfaction with the response made by the other place and we have been taking action to push bodies that we think need to consider this. I have given the example of dentists because they seem to have been active in this area, and their document Standards for Dental Professionals has a section on patient dignity and choices which addresses human rights issues. That is the good practice we need to build on.

We feel that, in light of the actions that we are already taking overall to improve human rights awareness and the training that healthcare professionals already receive, the amendments are not required. There are also specific reasons why we feel that each individual amendment is not needed, which I will now set out.

Amendment No. 117 imposes a requirement on the OHPA to ensure that it has regard to the desirability of improving the awareness of and training in human rights issues among its members. However, as a public body, the OHPA will already be bound by the Human Rights Act. In addition, the chair of the OHPA is required by the Bill to be legally qualified, which will ensure that on the board of the OHPA there is a strong understanding of its legal duties in relation to human rights.

Clause 97 also requires the OHPA to provide appropriate training to its panellists, which will of course include training around human rights. In relation to the specific intentions set out in the JCHR report, OHPA will not actually deal with qualifications, relicensing or accreditation; its only remit is to ensure that fitness to practise cases are determined fairly.

Amendment No. 138 would require CHRE to promote the human rights of patients and the public. However, the function of CHRE is to promote the health, safety and well-being of patients; this already fundamentally encompasses promoting human rights. In promoting, for example, the well-being of patients, CHRE will of course be seeking to ensure that convention values such as the dignity of the patient are respected. Like the OHPA, CHRE is also a public authority and as such must act in accordance with human rights under the European convention.

Amendment No. 154 seeks to add,

“awareness of, and training in, human rights”,

to the list of examples in paragraph 2 of Schedule 9 of the kinds of regulations that can be made under Clause 118. This is unnecessary. The list gives examples of the types of areas which may be covered, but is not exclusive. Therefore, regulations could already make provision for human rights training and education—and training is already in the list of examples in the Bill.

Amendment No. 157 imposes a requirement on the Secretary of State and Welsh Ministers to make regulations about awareness and training in human rights issues, under the power to modify the functions of the General Social Care Council and the Care Council for Wales that relate to the education and training of approved mental health professionals. Again, this amendment is not necessary as both councils are public bodies and as such have to comply with the Human Rights Act.

I have set out the specific reasons why these amendments are not necessary, but I hope that noble Lords will also consider these arguments in light of the overall steps we are taking to improve human rights awareness across the board, which I began by detailing. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

17:30:00

The Earl of Onslow
I think that I am totally satisfied by that. I will probably get frightful stick from my committee for the disabled, but the noble Baroness has gone a long way and I thank her. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 94 agreed to.

Schedule 7 [Adjudication functions under Medical Act 1983 and Opticians Act 1989]:

Earl Howe
moved Amendment No. 118:

118: Schedule 7, page 147, line 8, leave out “General Council” and insert “OHPA”

The noble Earl said: Before I address these amendments—like the Minister, I welcome the fact that we have moved on to Part 2—perhaps I could preface my remarks by saying that a number of amendments have been tabled in relation to the changes proposed for medical regulation, nearly all of which are of a probing nature. The value of the Grand Committee is that we can examine the proposals in the Bill in an atmosphere that is not going to result in any division of opinion. We are here to test the underpinning policy. I note that the GMC is concerned that some of the amendments tabled are apparently of a kind that question the decisions that have been taken by it and by the Government. But it is right that these matters are debated and not simply glossed over. The job of this Committee is to test policy and, therefore, I make no apology for having tabled the amendments.

New Section 35ZA provides for the GMC to publish guidance on what type of sanctions should apply to the doctor, depending on the facts that are found by the adjudication panel. The OHPA must take account of this guidance. If the GMC believes that the OHPA has been too lenient, paragraph 11 of the schedule gives it powers to refer the decision to the court. The question posed by these provisions is this: if the intention is that the OHPA should be an independent adjudicatory body, how appropriate is it for the GMC to continue to determine the sanctions that should apply to fitness to practise decisions? The whole raison d’être of the OHPA is supposed to be that we have a body that is quite separate from the GMC, yet here we see this umbilical cord continuing to operate between the two bodies.

The requirement to take into account the GMC’s guidance on sanction would appear directly to compromise the adjudicator’s independence at the sanction stage. Indeed, the GMC’s guidance on sanction is designed precisely to influence the adjudicator’s choice of what sanction to impose. There are those who view this as a direct fettering of the adjudicator’s discretion.

In a fitness to practise case, it is the GMC that instigates the proceedings. Therefore the question is: is it counterproductive or helpful for the council to have a say in the outcome of the case? When we look at the process in a criminal court by way of comparison, we do not find that the court has to take into account any guidelines about sentencing supplied by the prosecution, yet here we have the prospect of that happening.

I understand the counterargument that the GMC has powerfully advanced: that, as the guardian of medical ethics and medical standards, the council should have a direct role in ensuring that the operational guidance for the OHPA relates back to these standards in a way that is consistent and coherent. The guidance will be there precisely to support professionalism. If there is a derogation from it, it will set out how seriously that derogation should be treated. The GMC regards the maintenance of professional standards as its core function, and none of us would disagree with that. It argues cogently that all it is asking for is for the OHPA to pay regard to the guidance, no more than that.

There need to be guidelines about sanctions and warnings—they are an important way in which consistency and transparency of decision-making can be achieved—but the question we need to address is whether the guidelines issued by the GMC are the only way of achieving the desired result. One alternative could be to allow the OHPA to draw up its own guidelines. It could do so in consultation with the GMC and the CHRE, as well as with other interested bodies. That is what the amendment proposes. What is at stake here is the visible independence of the OHPA from the GMC—and, indeed, from anyone else—in the interests of fairness and of justice being seen to be done.

I have been quite open and, I hope, fair in recognising that there are arguments both for and against the maintenance of the umbilical cord between the GMC and the OHPA with regard to indicative sanctions, but we need to hear from the Government precisely why they favour such an arrangement when, as we all know, perceptions in these matters are so important. I would like to hear what answer the Minister has to the concerns I have outlined. I beg to move.

Lord Walton of Detchant
Rarely in proceedings in your Lordships’ House do I ever find myself in disagreement with the noble Earl, Lord Howe. I have to declare an interest as a past president of the General Medical Council. I admit that my seven-year presidency ended in 1989 before I became a Member of this House, so the GMC and its responsibilities have changed substantially since that time, but surely the White Paper and its proposals that related to some of the recommendations of Dame Janet Smith in her important report were designed to remove from the GMC the final jurisdiction over doctors who were being accused of serious professional misconduct, and whose fitness to practise was in some respect impaired by reason of either conduct or health.

It is for that reason that—although I have some reservations about many aspects of the White Paper—the OHPA was so designed to stand in the Bill as being the final court, taking away from the General Medical Council the responsibilities for the legal proceedings against any doctor whose fitness to practise was regarded as being impaired. Surely that independence would now be prejudiced if the OHPA were to be invited not only to be the final court of judgment but to lay down the criteria on which issues of professional unfitness to practise were defined. The GMC has made it clear in its letter that its core guidance in Good Medical Practice,

“sets out the principles and values on which good practice is founded and describes medical professionalism in action. The guidance describes what is expected of all doctors registered with the GMC”,

and has always made it clear that doctors may be disciplined if they show,

“serious or persistent failure to follow the guidance”,

because that failure can put their registration at risk. The letter goes on:

“Good Medical Practice not only describes how doctors should behave, it sets the standards against which their behaviour is evaluated in any investigation and informs the criteria against which a fitness to practise panel should consider whether their fitness to practise is impaired”.
 

I am very sad, having talked on Monday about the purity of the English language and correct phraseology, to find that an official letter from the GMC goes on to say,

“this criteria for panel decision”,

which should be “this criterion”; being singular and not plural. I pass that over. I quote:

“These amendments would change responsibility for the production and ownership of Indicative Sanctions Guidance from the regulator to OHPA”—
 

In other words, from the body that is setting the standards to the body that is determining whether those standards have been breached. It would mean that if fitness-to-practise panels were to make decisions,

“without taking into account the GMC’s guidance, then OHPA would be in a position where it was, de facto, setting the standards for medical regulation and usurping the role of the GMC as a standards setting body for the medical profession. It would also generate confusion for patients and the public if it appeared that two separate bodies appeared to be responsible for setting standards for doctors”.

I could say much more, because there should be that separation between the standards-setting body and the body that is concerned with the decision as to whether those standards had been breached. In the GMC’s briefing several quite important decisions by learned judges appear to clarify that situation. For that reason, with deep regret to my colleague the noble Earl, Lord Howe, I cannot support the amendments.

Baroness Finlay of Llandaff
I slightly disagree with the noble Lord, Lord Walton, and I do so in fear and trepidation as a doctor who is registered with the GMC and who was registered when he was presiding over it. This demonstrates the importance of Grand Committee on a topic that is so fraught.

The reality is that the livelihoods are at stake of professionals who have been high achievers and who want to achieve well throughout their careers; and something has happened and they have come crashing down, for whatever reason. I remind the Committee that we must remember that in this country people are innocent until proved guilty and that, under Article 6 of the European Convention on Human Rights, people have the right to a fair hearing by an independent and impartial tribunal. The hearing includes the totality of the case at the fact-finding stage and the sanctions stage.

I have been influenced in the way that I regard this amendment by the fact that the Medical Defence Union is not happy with the wording of the Bill, and some of the reasons for that have become important for the profession. The GMC guidance on sanction could be perceived to have a built-in bias because there is no requirement in the Bill for that guidance to take a balanced view. One part of sanctions is not to strike doctors off, but to ensure and be able to enforce that such doctors are retrained in whichever area that training is needed, or that they seek the kind of support they need for their professional practice that perhaps they have not had for many years. There is a clear and compelling need for the OHPA to have published guidelines on sanctions and warnings, but I can see the arguments for the adjudicator to draw up its own guidelines, albeit with guidance from the GMC. It is the strength and power of the messages moving along that umbilical cord, as the noble Earl, Lord Howe, put it, that becomes important.

I may have misinterpreted the Bill, but it appears that the GMC is able to question an inappropriately lenient decision by the OHPA in the event of a decision being taken, but I am not sure that the GMC is able to question an inappropriately harsh decision. What protection is built in for a doctor where the OHPA decision seems to those in the regulatory body to be inappropriately harsh?

17:45:00

Baroness Tonge
I, too, am very disturbed by the noble Earl’s amendment because, like the noble Lord, Lord Walton, I find that I usually agree with him. Indeed, I wonder if I am saying the wrong thing because I am disagreeing with him. But I am worried about a general trend which seems to be developing in the National Health Service that almost deprofessionalises the profession. I hope that I am not putting it in too strong terms. We are no longer the great medical profession, we are part of the workforce of the National Health Service and we are being regulated and told what to do. In the past year, we have even been told how to train junior doctors, right down to where they should apply and what form they should download from the internet. I hope that the Minister can reassure me that there is no intention on the Government’s part to deprofessionalise the medical profession.

At the moment, there is a great danger that this is beginning to happen because the profession has for decades worked loyally with the National Health Service. It is a dangerous development and the medical profession is starting to see a red light and to wonder what its future is within the health service. Maybe I am generalising too much, but that is my worry, and it is encapsulated in the noble Earl’s amendment because I am afraid that it may be one more step in the deprofessionalisation of the profession because it would somehow diminish the role of the GMC. I would not want that to happen.

My noble friend Lord Carlile is not yet in his place—I hope that he will arrive soon—but I wonder what would happen if the same sort of processes were introduced for lawyers. I think that there would be an awful stink, but of course it cannot happen to them because they do not work for a national legal service, they are still independent. That is my contribution and I hope that the Minister can offer some reassurance.

Baroness Jones of Whitchurch
I suppose I should declare an interest as someone who has been employed on fitness-to-practise panels for the past couple of years. I, too, was disappointed to see the amendment of the noble Earl, Lord Howe, because one of the things that I have felt for several years is that the GMC has been on a long, learning journey from which it has learnt the lessons from the big legal cases and the big inquiries and is in the process of modernising to take account of those lessons. I have been very impressed by the openness with which it has done that, and I am aware of the amount of dialogue and support that there has been for what the Government propose here, so to start saying at this stage that we can do better than that is unfortunate.

I do not want to echo all the good things that the noble Lord, Lord Walton, said, which are included in the GMC’s briefings, but I do think that the document, Good Medical Practice, is a gold standard. It is not a static document; it has evolved over time. My understanding is that doctors hold that document in very high esteem. It is more than just about establishing professional standards; it is something against which doctors accept they should be evaluated. We should not lose sight of that document. It would be hard for a new organisation, however worthy, to find the eloquence and the expertise to replicate that document, so we should not lose sight of its importance for doctors’ training and professionalism. I will not go on or I will repeat comments of colleagues. I oppose the amendment.

Baroness Howarth of Breckland
I did not intend to speak in this part of the debate, but the noble Baroness talked about professionalism, which made me get to my feet. I am afraid that I support the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, in this matter. This is a question of how we reassure the general public that there is a separation of powers. This is done in all sorts of areas. Many organisations have a part that hears complaints, and adjudication and sanction are often separated out from the professional body that sets the standard. This debate should be had because we got into difficulties previously when we used this word “professionalism” to cover poor practice.

I am a professional in another field, and I would expect to be held to account—I hope by my organisation, which could strike me off. We need to think this through and discuss this kind of separation of powers, which would not prevent there being some method of influence. I have recently been involved with the General Medical Council and find it to be a superb organisation, but that does not prevent it being questioned. I speak simply because I wanted to support the noble Earl and the noble Baroness, Lady Finlay, in testing and pressing the issue of what it means to be a professional. It does not mean that you are protected.

Baroness Golding
I, too, support the amendment of the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay. The idea that any organisation should not be questioned is incredible, especially in a debate such as this. It is well known that paediatricians have had great difficulty with the General Medical Council. At a recent meeting of professional associations, 32 members of the Royal College of Paediatrics and Child Health tabled a vote of no confidence against what the General Medical Council was doing with regard to paediatricians. Something is very wrong when professional people feel that they have no confidence in an important body such as that. I intend to speak later on a number of related issues, but I wanted to say how strongly I support the amendment of the noble Earl, Lord Howe.

Lord Walton of Detchant
This is Committee, so perhaps I may intervene again to say that that issue greatly concerns me, too, but it comes up later in the Bill, not here. The crucial issue here is that the amendments would overturn the principle of having one body that sets standards and another that has to look at the legal issue of whether those standards have been breached. It is for exactly that reason that I am not willing to support them. That principle, which was wrested from Janet Smith’s report and which defined the different responsibilities of the standard-setting body and the body that had to decide on sanctions, is exactly what would be breached if the amendments were approved.

Baroness Golding
I reply to the noble Lord by saying that some of these decisions are taken to the High Court. If they could be prevented from moving to the High Court and being overturned, that would be really good.

Baroness Thornton
I thank the Committee for a very interesting discussion. As Members have realised, Amendments Nos. 118 and 119 would require the guidance on possible sanctions to be published by the OHPA rather than the GMC, as is now the case. With the transfer of adjudication to the OHPA—I keep wanting to call it OPRA, I am sorry; I will get it right—it is important to safeguard the continuing consistency of sanctions decisions. There is a clear need for such guidance to continue to be published, and I am confident that it is right for the GMC to do that.

Let me explain why we want to go down that route, and perhaps offer some comfort to the noble Baroness, Lady Tonge. I do not think that I need to defend the noble Earl, but he said that he wanted to explore the issue.

To be on the medical register, practitioners will need to comply with the standards set by the GMC. The gold standard, as it was described by my noble friend, is Good Medical Practice. As that is the basis on which cases will be put to the OHPA, it is appropriate for the GMC to publish guidance on the interpretation of those standards and the sanctions that might be appropriate if a practitioner fell short of them.

As I said, Amendments Nos. 118 and 119 provide for the OHPA, not the GMC, to produce that guidance. The Medical Defence Union has argued for the change proposed by the amendment on the grounds that requiring the OHPA to follow the GMC’s guidance would interfere with the independence of the OHPA. The Committee is quite right to test and discuss that.

I agree that panels must not be unduly influenced by the guidance published by the regulators on the appropriateness of sanctions. That is why the Bill says that the OHPA must take account of it. It does not say that the panel must follow the guidance if there is good reason to depart from it.

I take this opportunity to state on the record that the OHPA’s panels will be perfectly at liberty to make their own decisions. Clearly, a panel cannot operate in isolation from Good Medical Practice and the GMC’s sanctions guidance, which is derived from it, but it will not be bound to impose a specific sanction in an individual case if it does not think that, in the particular circumstances of that case, such a sanction is appropriate. It is also important that guidance is general rather than unduly prescriptive.

The noble Baroness, Lady Finlay, asked whether the GMC can question inappropriate guidance. Yes: if a decision is inappropriately harsh an individual has the right of appeal to the High Court. The right of appeal of the GMC is therefore to cover cases where the decision seemed appropriately lenient.

The noble Baroness also asked about compliance with human rights. We carefully considered the issue of compliance with Article 6 and the council’s decision obtained by the Medical Defence Union. We do not believe that the guidance will fetter the discretion of the OHPA, nor is it incompatible with Article 6 of the European Convention on Human Rights. The Committee may be aware that the GMC is currently revising its Indicative Sanctions Guidance, and has just completed a public consultation, which closed on 9 May.

18:00:00

The draft guidance that the GMC has produced does not attempt to set out a tariff of the sanctions that the panels must apply in a particular kind of case, and I agree it is important that it does not do so. The draft guidance sets out a range of factors that may lead panels to conclude that it would be appropriate for the protection of the public to consider a particular sanction, such as the suspension of a doctor from practice. It makes clear that if the panel considers suspension to be the appropriate sanction, the length of that suspension is wholly within the discretion of the panel. It is entirely right that this sort of general guidance can be given by the body responsible for setting professional standards, and I do not believe that such guidance will compromise the independence of the adjudicator.

The OHPA will obviously have to ensure that the way the guidance should be taken into account is covered in the training it gives its panel members and that its panels are making decisions in a fair and consistent manner. This is a key task for the OHPA board, and it will be the board’s job also to monitor it. I hope that, having heard that explanation, the noble Earl will feel able to withdraw his amendment.

Earl Howe
This has been a good debate. I do not feel I need to apologise for having tabled the amendments. The debate has fulfilled its purposes because it has drawn out the underpinning logic and arguments for the policy as well as some of the countervailing arguments. I am grateful particularly to the Minister for her reply.

I say to the noble Lord, Lord Walton, that while he felt he had to come out in disagreement with me, I am not sure that he needed to do so. It is not necessary to disagree with a question, and a question is what I was asking. That question was neither unnecessary nor silly, and I am glad that the noble Baronesses, Lady Finlay, Lady Howarth and Lady Golding, felt able to come out in support of it.

The Government’s policy was originally to have a clear separation between fact-finding and fault-finding, precisely because of public perceptions, a point powerfully made by the noble Baroness, Lady Howarth. If we were honest, we would admit that part of the deal between the GMC and the Government was that if a separate adjudication body were to be created—namely, the OHPA—that body should have a duty to take account of the GMC’s guidance, otherwise I doubt whether the GMC would ever have agreed to a separate body.

I acknowledged in my earlier remarks that the deal that has been reached may well be a reasonable approach. Indeed, if the argument of the noble Lord, Lord Walton, were to be taken strictly, the OHPA would have been made to follow the guidance to the letter, but it will not be required to do so.

The debate has probably run its course. I shall read carefully what the Minister has said, and it may be that we shall not have to return to this matter at a later stage. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 119 not moved.]

Baroness Thornton
I propose that the Committee adjourn for 10 minutes until 6.13 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was adjourned from 6.03 to 6.13 pm.]

Baroness Thornton
moved Amendment No. 120:

120: Schedule 7, page 153, line 1, leave out “member State” and insert “relevant European State”

The noble Baroness said: In moving Amendment No. 120, I shall speak also to Amendments Nos. 121, 155, 156, 158 and 159. These are minor, technical and consequential amendments on professional regulation. They include minor drafting corrections and some consequential and clarifying amendments arising from the creation of the OHPA. If Members of the Committee wish, I can take them through each of these amendments in detail. I beg to move.

18:15:00

Baroness Golding
If the person practising is an American, how is he or she covered by this provision, which covers European states? If an American doctor is over here who is affected by this provision, will he or she be sent back to America—or what will happen?

Baroness Thornton
Amendment No. 120 is a drafting correction. The 2007 European qualifications regulations amended the heading of Section 44 of the Medical Act 1983. We are therefore changing the reference in the Bill to reflect that. It has no effect on the meaning of the provision and no effect on current practice.

Baroness Golding
Are Americans practising in this country governed by the GMC or are they referred back to America?

Baroness Thornton
I will need to check that and write to my noble friend as my notes do not cover that point.

Lord Walton of Detchant
There are clear mechanisms for registering overseas doctors from countries outside the European Union which I think are still solid and effective.

Baroness Thornton
That was what I was trying to say. I thank the noble Lord very much.

Baroness Golding
Further to that, all 50 states in the United States have mandated reporting laws whereby physicians are required to report child abuse to authorities and are protected from liability if they report in good faith. We do not have that measure in this country. Perhaps we should consider having it. I hope that the Minister will comment on that.

Lord Walton of Detchant
It is important to clarify this. It is perfectly true that for some years any doctor with a British qualification practising overseas in, for example, the United States or Canada who was subject to disciplinary sanctions in that country did not have the proceedings reported formally to the GMC. However, after one or two very notable cases that arose in Canada, that situation was changed and such proceedings were reported formally to the GMC, so that it became aware that the doctors in question had been disciplined in another country. I am uncertain whether that still applies; things may have changed in the past few years. However, I think that is the position.

Baroness Golding
I am sorry to interrupt, but that is not my question. I am talking about double standards. There is one law for American doctors in America but if they come over here to practise will they be completely subject to the jurisdiction of the GMC? How will we deal with that situation?

Baroness Thornton
I thank the noble Lord, Lord Walton, for his helpful explanation. I will undertake to clarify this situation for my noble friend and circulate the letter to the Committee.

On Question, amendment agreed to.

Baroness Thornton
moved Amendment No. 121:

121: Schedule 7, page 156, line 34, after “for” insert “the Registrar for him to refer it to”

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 95 [Fitness to practise panels]:

Baroness Finlay of Llandaff
moved Amendment No. 122:

122: Clause 95, page 47, line 8, leave out “a lay member” and insert “two lay members”

The noble Baroness said: This is a probing amendment, but it relates to the constitution of the panels that will determine the future of the relevant doctor. I have already said that doctors are fearful of the GMC, but it would be more accurate to say that they are terrified of it. Doctors know perfectly well that the panel before which they come under a fitness-to-practise hearing will determine the whole of their future life. Therefore, I am querying why the panel has only three members.

For some doctors, the fear of the fitness-to-practise panel has been so great that they have actually committed suicide before their hearing, not through guilt but through the burden of shame at ever having been reported to the GMC in the first place, even when that was vexatious reporting and they have known that that was the case, or even when they have known that a hate campaign has been run in the local newspaper against them and they have been unable to respond because of fear of breaching patient confidentiality, but they have known that their practice was not substandard and that they had nothing to feel guilty about.

No one should underestimate how devastating a complaint is to a conscientious doctor, let alone when it gets reported to the GMC. The problem with a panel of three is that it seems almost dangerously small. If you have a powerful personality among three people on a panel and one of the other people is not a very powerful personality, it becomes easy to see how that small panel could become biased in its thinking or perhaps overinterpret some items of evidence brought before it and underinterpret others. After all, however well trained the panel members are, they are only human. I am not questioning the validity of people who sit on panels for the GMC. I am questioning the principle of having a panel that consists of only two members. That is why the amendments suggested increasing the number of lay members to two and the number of professionally qualified members to two.

I note that under Clause 95(4), the rules can determine the fitness-to-practise panels, but I am concerned that nothing here says that the balance should be equally lay and professional. It would be just as dangerous to have a panel that was loaded with lay membership as it would be to have a panel loaded with professional membership. To have the latter would take one severely back in time.

This is a probing amendment that questions whether it is wise to have a panel of only three members rather than a minimum size of five and questions why we do not have a designated balance, accepting an independent chair as the fifth member of a panel. I have discussed this issue with the Medical Protection Society, and it has concerns about the small size of the panel.

The amendment about one member who should have relevant professional expertise is also a probing amendment. It is not at all to undermine the role of the professional adviser to the panel; rather, it questions whether, where a small panel is forming a judgment and there is only one professional member on that panel, that person can necessarily interpret some of the complex contextual aspects of the doctor who is up before the panel.

You could say, “Can someone working in the pharmaceutical industry really interpret the full context of modern general practice or vice versa?”. There are some very high-tech and complex areas of clinical practice that are far removed from the low-tech areas. I shall give the Committee an example: contrast inter-uterine foetal surgery with psychogeriatrics. Some of the pressures, the decision-making, the context and the team that one works with are very different. When you look at medical errors and problems that arise, they often have compounding factors from a team rather than being the responsibility solely of the doctor who is up before the panel. It is for that contextual reason that I am asking that it should be someone who had relevant professional expertise.

I say emphatically that I am not requesting that one should ever consider that it is someone from the same discipline. Medicine is a small world, and it is easy to have bias. If people have heard about someone being reported to the GMC and so on, their thinking might be biased before they ever come on to a panel. However, I wonder whether one needs to ensure that there is some relevant background to understand the context of the doctor who is before the hearing. I beg to move.

Lord Walton of Detchant
I have considerable sympathy with the amendments tabled by my noble friend Lady Finlay on the membership of the panels. A panel of three is too small, and the idea of having two lay and two professionally qualified members is very sensible. At the very least, I hope that the Government give us a complete assurance that, when OHPA decides what number of members will sit on the panels, there will always be equality between the number of professional and lay members. That is not in the Bill, and it is a principle that is absolutely to be commended.

The panels used to have on them an individual from the same profession as the respondent doctor. When I chaired the Professional Conduct Committee of the General Medical Council, we always used to appoint to the panels hearing the case a doctor from the same discipline as the doctor whose fitness to practise was under consideration. I fully appreciate that many paediatricians, particularly those who have been engaged in child protection issues, have taken the view that certain recent decisions by the GMC’s Professional Conduct Committee on doctors working in that field have been perverse and might not have been taken if a specialist paediatrician working in child protection had been sitting on the panel. I believe that the GMC now accepts that view, but the problem with a specialist from the same field sitting on the panel is that the advice by the panel and the debate by the panel about the doctor’s fitness to practise are respectively given and held in camera and are not public.

One great virtue of the Bill is that it clearly defines in Clause 98 the role of the legal assessor, and clearly defines in Clause 99 the role of clinical and other specialist advisers. After Second Reading, I wrote to the noble Lord, Lord Darzi, and he wrote back, saying that he was quite confident that the specialist and clinical advisers would be chosen with the same status as the legal assessor, with the authority to have those clinical and specialist advisers from the same speciality as the respondent doctor. If the Minister can give me that assurance, it is very important that that should be accepted. Subject to that, I am happy to support the amendment, except for the one point.

Baroness Golding
I, too, strongly support the amendment. In a recent case that came before the GMC, the professionally qualified member could not attend at the last moment but the case still went ahead. That is very regrettable. If the amendment is accepted, that will be avoided.

Baroness Thornton
Amendments Nos. 122 to 125 propose changes to the composition of the fitness-to-practise panels of OHPA. Amendments Nos. 122, 123 and 125 would impose a panel of five members, no matter what the circumstances of the proceedings before it. Clause 95 provides for OHPA to have a panel of three members, a chair, a lay member and a professionally qualified member, with additional members appointed as necessary. This provides the flexibility for OHPA to form large panels in complex cases, while ensuring that a quorum of three members is all that is required to ensure that a decision can be reached. I suggest that to impose a fixed number of five panellists on OHPA would remove this flexibility and inflate the size and cost of panels needed to conduct adjudication procedures. In my view, the cost is not the issue.

18:30:00

Baroness Tonge
I take the point that the panel should be flexible and can appoint more members, but if the minimum is to be three, that does not cover the possibility of someone not turning up or someone being ill at the last minute. In any case, to have three members of a panel deciding on the future of a doctor and whether they can pursue their livelihood for the rest of their lives is, frankly, an insult. The minimum should be five.

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 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 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.

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:

126: Clause 95, page 47, line 14, at end insert—
 “( ) All fitness to practice panel members shall be independent of any previous investigation or proceeding concerning either the professional under investigation or an incident relating to that professional.”

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.

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:

“As I understand it Professor Tim David was the sole paediatric expert assisting the G.M.C. in both the prosecutions of Professor Southall. I also understand that Professor David was appointed by the Family Court to oversee the care of the remaining Clark child and supported Mr Clark’s position. He has also been retained to support the Clark family in their appeal against Mrs Clark’s criminal conviction. If this is correct how could Professor David act as an impartial paediatric expert in the prosecution of Professor Southall by the G.M.C.?”.
 

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.

18:45:00

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

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 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:

127: Clause 95, page 47, line 18, leave out “in specified circumstances”

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 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,

“a chair who is legally qualified for the purposes of section 96(2)(a), and may provide for pilot schemes under which chairs who are legally qualified for those purposes are, or are not, selected for such proceedings as may be determined in accordance with the rules”.

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.

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 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.

19:00:00

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.

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  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 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,

“is not against the idea of a legally qualified chair for some OHPA panels, but would not wish to see all panels chaired by a legally qualified person …When choosing panel members and chairmen, the most important factor should be their competencies”.

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 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.

19:15:00

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. 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:

129: Clause 95, page 47, line 22, at end insert—
 “( ) All members and chairs of the fitness to practice panels shall be subject to performance appraisal.”

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. 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:

131: After Clause 103, insert the following new Clause—
 “Duty to co-operate
 The OHPA must co-operate with the Council for Healthcare Regulatory Excellence to enable the Council to perform its functions.”

The noble Earl said: Amendment No. 131 is about the relationship between the OHPA and the Council for Healthcare Regulatory Excellence. It brings us to a simple but important point: if the function of the CHRE is to audit the decision-making of the medical regulators, and if the OHPA is to be an integral part of the medical regulatory process, the CHRE must have free access to the work that the OHPA is doing. At the moment the Bill provides no guarantee that the CHRE will have such access. It seems fundamental that there should be a duty on the part of the OHPA to co-operate with the CHRE and to share information with it to enable the CHRE to perform its job effectively.

Although I do not know what the Minister is going to say to me—she may say that the OHPA would naturally wish to share information with the CHRE and that the amendment is therefore unnecessary—we need only reflect on the possibility, which we hope is quite remote but not unthinkable, that the CHRE might, for whatever reason, feel disposed to criticise the way in which the OHPA performed its work. In those circumstances, there could well be reluctance on the part of the OHPA to be as helpful as it should be towards the supervising regulatory body. We cannot in all situations rely on people’s good will. That is why we need an explicit duty in statute in order to place the matter beyond doubt. In fact, the very existence of such a duty should guarantee that it never needs to be formally invoked. I beg to move.

Baroness Cumberlege
I support my noble friend. I understand that the CHRE has reviewed 1,200 cases, and out of those it has taken only six to court. Importantly, however, those six were very important cases, and it won each one in the Court of Appeal. This is a critical issue.

Lord Walton of Detchant
I have made my view abundantly clear on several occasions that the CHRE is totally redundant and unnecessary. It is a quango that I would love to see abolished. As it exists, and as there is no prospect of that body being abolished, I strongly support the amendment.

Baroness Thornton
Amendment No. 131 proposes that a new clause be inserted after Clause 103. The new clause would require the Office of the Health Professions Adjudicator to co-operate with the Council for Healthcare Regulatory Excellence to enable the CHRE to perform its functions. This is a sensible issue to raise, and it is something that we considered carefully when drafting the legislation, so I am glad to have the opportunity to explain our views.

There are two possible purposes for having such a duty. The first is to ensure that the OHPA benefits from the CHRE’s expertise in regulatory matters, and the second is to ensure that the CHRE can obtain the information that it needs from the OHPA to carry out its own statutory functions properly.

On the first possible purpose, to ensure that the OHPA benefits from the CHRE’s expertise, the Bill as drafted already does so. Under Clause 104, the Bill requires the OHPA to consult the CHRE on its draft rules, which will set out almost every facet of its processes. By requiring the OHPA to consult the CHRE on those rules, the Bill ensures that there is an appropriate statutory guarantee that the CHRE will be able to express views and advise on existing best practice on all the important issues that the rules deal with.

On the second possible purpose of having such a duty, to ensure that the CHRE can obtain the information that it needs—which the noble Earl referred to—from the OHPA to carry out its functions properly, existing legislation is already adequate. The OHPA is not a regulatory body; it will have functions only in relation to adjudication. The CHRE’s remit and functions extend only to regulatory bodies. I am happy to reassure Members of the Committee that legislation is already in place to ensure that the CHRE is able to obtain information about how the GMC and the GOC carry out the investigation, referral and presentation of fitness-to-practise cases for adjudication, which will of course be matters still falling within the CHRE’s remit.

Any information that the CHRE might require in relation to the GMC’s or the GOC’s continued role in fitness to practise would be obtained from the relevant regulatory body. Section 27 of the National Health Service Reform and Health Care Professions Act 2002 already places a statutory duty on the regulatory bodies to co-operate with the CHRE, which includes the provision of information when requested by the CHRE.

However, I emphasise that there would also be nothing to prevent the OHPA and the CHRE working together where that was beneficial. That model has already worked for the General Social Care Council, which is not in the CHRE’s remit, but which works with the CHRE. For example, the CHRE recently extended an invitation to the General Social Care Council to participate in work on professional boundaries. The CHRE also works effectively with patient and public organisations without any formal duty of co-operation. In light of my explanations on this issue, I hope that the noble Earl, Lord Howe, will feel able to withdraw the amendment.

Earl Howe
The Minister’s reply is in large measure reassuring. The central point to grasp, if I have grasped it correctly, is that the duty on the part of the GMC to co-operate with the CHRE will ensure that all the necessary information that the CHRE needs is passed to it, even if it has to come by a roundabout route. If it is information from the OHPA, it is almost certain that the GMC will have that information to pass across. I shall consider carefully what she has said. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 104 to 106 agreed to.

19:30:00

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

Lord Tunnicliffe
moved Amendment No. 132:

132: Schedule 8, page 166, line 34, leave out “and”

The noble Lord said: In moving Amendment No. 132, I shall speak also to Amendments Nos. 134 to 136, 152 and 220 to 225.

On the basis of the recommendations of the Hampton review on regulatory inspection and enforcement in 2005, the Government committed to abolishing the Hearing Aid Council by April 2009 and to transferring responsibility for the regulation of private hearing aid dispensers to the Health Professions Council. This group of amendments is intended to achieve that, in addition to ensuring that public hearing aid dispensers can also be regulated in the future in the same way.

First, I acknowledge that it is not ideal to introduce this change into the Bill at such a late stage. The Department for Business, Enterprise and Regulatory Reform, which leads on delivering this commitment, had considered a number of mechanisms to achieve the policy aims, but it became clear that primary legislation would be needed. It made sense to use this Bill both to meet the timescale and because it already includes substantial measures to reform the system of professional regulation. In modernising the regulation of hearing aid dispensers, and allowing for future consistency between public and private hearing aid dispensers, these measures contribute to the wider programme of professional regulatory reform. I recognise that the timing is not ideal, but I hope that I am able to persuade noble Lords that the great benefits that this measure will bring are worth this disadvantage.

Most importantly, this measure will provide improved protection for the hearing-impaired. For nearly 40 years, the Hearing Aid Council has done an excellent job in regulating the private hearing aid profession. I put on record the Government’s thanks for the important work that the council has done over four decades. However, it is operating under legislation that is increasingly outdated, with gaps in consumer protection. The Health Professions Council, which was established in 2001, has modern and comprehensive legislation that will provide a much more complete service to patients and consumers. For example, the Health Professions Council has extensive fitness-to-practise powers, allowing it to remove someone from the register who it finds poses a serious risk before the registrant actually causes harm. In contrast, the Hearing Aid Council must wait until harm has been done before it can take action.

This measure also paves the way for the regulation of public and private dispensers on a single register with a single set of standards. Currently, hearing aid dispensers in the private sector are regulated by the Hearing Aid Council, with NHS hearing aid dispensers unregulated. Clearly, this will improve protection for the hearing-impaired.

I know that this principle is close to the hearts of many noble Lords: we will be reducing the number of regulators in existence. The Health Professions Council already regulates 13 different professions, so it is well equipped to regulate one more.

Finally, it is important to emphasise that both the Hearing Aid Council and the Health Professions Council fully support this move. Both organisations have worked very closely together over the past year to ensure that the transition will be as smooth as possible. Furthermore, the professional body, the British Society of Hearing Aid Audiologists, is very much in favour of this and has committed to continue working with both organisations during the transition from one to the other. The Royal National Institute for the Deaf also believes that its consumers will benefit from the change.

Subject to the passage of the Bill, it is therefore the Government’s intention to bring forward an Order in Council later this year under the Section 60 provisions of the Health Act 1999 to allow the Health Professions Council to assume responsibility for the regulation of private hearing aid dispensers. This will require a formal 12-week consultation, followed by a debate in both Houses. The amendments and the future Section 60 order will ensure that the needs of the vulnerable are better protected under the auspices of a multi-professional statutory regulator, which has greater resources yet charges considerably smaller registrant fees.

Therefore, I hope that Members of the Committee will forgive the fact that this is a late addition to the Bill and will feel able to support the amendments. I beg to move.

Baroness Howe of Idlicote
I particularly welcome Amendment No. 152. Perhaps I should declare an interest as a hearing aid user for over 50 years and as one of the first people lucky enough to be able to afford a digital hearing aid, so I know how valuable they are. I therefore applauded the Government when they introduced a very reasonable range of digital hearing aids through the NHS. But, as the Minister and noble Lords know, waiting times for those aids are very uneven around the country. One must hope that what is being proposed will help to speed up the process.

As we have heard, the Hearing Aid Council regulates the independent sector. Under the new scheme, the Health Professions Council will ultimately do the work of both councils. I find it odd that some NHS hearing aid dispensers are not required to have any qualifications, so that will be a plus. I was also amazed to learn that because the Hearing Aid Council is a relatively small body, it has to charge something like £695 a year for registration. It is hoped that that figure will drop to around £60 when the change is made. However, everybody says that the council has done an absolutely marvellous job. No doubt all the professionals would want to add their thanks to those that have already been made.

All is going in the right direction, and I am particularly glad to hear that the transition is likely to take place later this year. That must be good news. I should like confirmation from the Minister that when we say that this will take place, it actually will happen and the handover will begin. I seek that confirmation because quite a number of hearing aid dispensers in the independent sector could be employed in the National Health Service and thus reduce waiting lists. The time for that to happen has more than passed, so we need good news on this front.

The Government have always argued for an inclusive society. I speak from experience when I say that if there is one area which excludes you, it is not being able to hear the conversation taking place around you. Age is a factor which adds to this problem, even if, like me, you have had a different hearing problem for a long time. The more people are able to live to an older age, the more likely it is that they will have this problem.

We all welcome the fact that the merger will benefit clients, and we know that the RNID is very much in favour of it. We also know that of course BSHAA equally welcomes it. Moreover—and one has to say that this does not always happen—all the parties have been working together really well for quite some time.

Earl Howe
I am sure that the Committee will be grateful to the Minister for his explanation of the amendments. In his absence, I thank the noble Lord, Lord Darzi, for writing to me about them in advance. I have no difficulty with the principle of what is proposed, which appears to be potentially beneficial to registered hearing aid dispensers as well as their customers. As has been said, the professional bodies most closely associated with audiology are in favour.

I have only three questions. The first concerns regulatory clarity. One feature of the proposals is that complaints by consumers will no longer be directed toward a single body, as they are at the moment. Complaints that fall under the heading of consumer protection will fall to the Office of Fair Trading or trading standards officers. Complaints about fitness-to-practise matters and professional standards will fall to the HPC. Is the Minister satisfied that the new system will be simple for the consumer to understand and navigate? An ordinary man or woman, especially if they are elderly and frail, wants a straightforward process. This aspect of the changes introduces greater complexity and scope of confusion.

My second question relates to the transition. If there are fitness-to-practise cases in train when the transfer to the HPC is effected, how will they be concluded? On complaints, will the Government ensure that there is the minimum hiatus between one set of arrangements and the next? It would be unacceptable for consumers if the HAC’s work in dealing with complaints was suddenly terminated before the complaints were resolved, only then for the matters in question to be dealt with from scratch either by the HPC or one or other of the trading standards bodies. How will the transition be achieved smoothly so as not to disadvantage the consumer with undue delays?

My third question relates to the employees of the Hearing Aid Council itself. How many employees are there? Are there new jobs for them to go to, and will their employment rights be protected under TUPE arrangements if they transfer to the HPC?

Lord Tunnicliffe
First, I thank noble Lords for their general support. At the moment, I am let loose only on things about which people agree. I agree that it is odd that those in the public sector were not registrants; the proposals address that. On the matter of charges, yes, there will be a real reduction in fees. The Hearing Aid Council is a very small organisation with about 1,700 registrants, 200 of which are employers. To fund the running of the council, it now charges registrants an annual fee of £695. The Health Professions Council, in contrast, regulates about 180,000 health professionals. It has significant resources at its disposal—vastly greater than the Hearing Aid Council—and charges its registrants £72 a year. I am sure that the Committee will appreciate that the difference in fees of more than £600 a year is not inconsiderable to the hearing aid profession.

I was invited to assure the noble Baroness that the transition will take place this year. I have to disappoint her. It will be taken with all due speed, but the transition will be next year. I think that I am right to say that the target was April; we are doing our best to achieve that, but we will have to publish the Section 60 order, and of course we will want a proper 12-week consultation.

Some of the noble Earl’s concerns are covered by a communications campaign jointly instigated by the HAC and the HPC aimed at all relevant stakeholders to ensure that they are all aware of the impending change. The HAC has begun working with the RNID, Hearing Concern, Citizens Advice and other consumer groups to ensure that the campaign reaches its intended audience. The HPC and HAC are already working out a plan for a smooth transition, and have been planning this for two years. I can write to noble Lords with more detail if that would be helpful.

Finally, what about the workers? The Hearing Aid Council has a very small staff. The only full-time staff are three executive assistants and a modernisation and transfer manager. The chief executive, the registrar and the director of resources all work between one and two days a week, and the legal director works one and a half days a month. The council is working towards abolition in 2009, and any continuing uncertainty may affect staff retention. No staff are expected to transfer to the HPC, but we are confident that the two years of close co-operation with the HPC and the better protection will ensure that expertise is not lost.

On Question, amendment agreed to.

[Amendment No. 133 not moved.]

19:45:00

Lord Tunnicliffe
moved Amendments Nos. 134 and 135:

134: Schedule 8, page 166, line 38, at end insert “and
 (c) after paragraph (c) insert—“(ca) the profession regulated by so much of the Hearing Aid Council Act 1968 as relates to dispensers of hearing aids,”.”

135: Schedule 8, page 167, line 21, at end insert—
 “In paragraph 5 (exercise of power so as to confer and modify functions), in paragraph (a), after “the Scottish Ministers” insert “, a Northern Ireland department”.”

On Question, amendments agreed to.

Baroness Gardner of Parkes
moved Amendment No. 135A:

135A: Schedule 8, page 167, line 37, leave out sub-paragraph (3) and insert—
 “(3) After sub-paragraph (2) insert—
  “(2A) An order may not provide for membership of the regulatory body to be fully appointed, or for fewer than two members of that body to be elected persons included in the register of members admitted to practice.””

The noble Baroness said: This is a fairly clear and self-explanatory amendment. I am very concerned about the proposed changes to the General Medical Council and to the General Dental Council, which I know better. The proposal is that these will have 24 fully appointed members. Over the years, I have seen great variations in the make-up of the General Dental Council. I understand that originally almost all the members were nominated, but then there was demand for elections. I was elected as a general dental practitioner to represent general dentists. Then we reached the point when, in 2003, all nominated members were thrown out and all the dentist members were fully elected. The General Dental Council had 29 members, of which 15 were dentists who were all elected by a single transferable vote, 10 lay members and four hygienists or therapists. As I said, the General Dental Council decided that nominated members were not satisfactory and the change was made; all the dentists were fully elected in 2003. We are only in 2008 and the General Dental Council is proposing to throw out all the elected people.

I understand that a reliable and well informed independent appointments commission will take these decisions, but whatever the answer—I am sure it will be a reliable panel—it is taking away from the members of the profession their democratic right to elect representatives who really do understand the everyday problems of dentists in practice. As a member of the General Dental Council, I found that some people who were elected to represent general dentists—I do not think that I was any great help in this respect—raised amazingly important and interesting matters that affected every bit of general dental practice. There is perhaps a great division between dentists in National Health Service practices, who were the ones who were being elected, and people who are in important private practice. It is a retrogressive step in a democracy if we turn round and say that members of the profession will have no say in deciding who represents them. My amendment proposes that we retain at least an elected element on these authorities. I beg to move.

Baroness Thornton
I shall take the issue of the composition of regulatory body councils first. The Bill does not tell the full story of the Government’s policy in that respect. As set out in the White Paper, Trust, Assurance and Safety, the Bill removes the restriction in Section 60 of the Health Act 1999 on lay majorities on the councils of healthcare professional regulators. It is our intention that subsequent secondary legislation will then ensure that all councils have parity of membership between lay and professional members as a minimum. We think it is important that every regulatory body has at least parity, because professional majorities on a council can undermine the perception of its independence from the interests of the profession. I think there is widespread agreement about that. Having parity will remove any doubts that a professional majority can influence a council’s decision-making process in favour of the profession.

The intention is that every professional regulatory body will have parity, but the removal of restrictions on lay majorities in the Bill will also allow us to consider, on a case-by-case basis, requests from regulatory bodies to move to a lay majority. We want to make that option available to the regulators because moving to a lay majority is an opportunity for a regulator to send a clear and public signal that the interests of patients and the public are at the very heart of what they do. After all, the very reason that a regulatory system exists is to protect patient safety, and having a lay majority may reflect that purpose. This has been recognised by some regulators, including the General Optical Council.

Even with a lay majority, there will be ample professional members on the councils bringing a crucial professional perspective to council discussions. When we talk about a lay majority, it is likely to be simply one more lay member than professional members on the council, as a symbolic acknowledgement that the purpose of the regulatory body is to protect patient safety.

With regard to the second aspect of this amendment, which would prevent councils from being fully appointed, the noble Baroness, Lady Gardner, said in a recent debate on dentistry that appointed members are wrong because,

“they will not necessarily be representative of the practitioners in the way that someone elected to that post would be”.—[Official Report, 24/4/2008; col. 1698.]

However, it is for precisely that reason that the Government felt it was crucial to move away from elected members. Professional members on a regulatory body should not be representatives of the practitioners who have elected them. That creates a potential conflict of interest and a situation where patients and the public would be entitled to wonder whether the professional member, elected by his peers, saw his first duty to those who elected him or to the patients that the regulatory body exists to protect.

The appointment of all professional members is about resolving very valid concerns that being elected places on professional members a responsibility to the interests of their electorate and their specific concerns. It is also about creating a new transparency within regulatory bodies so that it is clear all members on the council are impartial and independent. Professional members of the regulatory councils are there to provide a professional perspective, but absolutely not to represent a specific group that elects them.

In the light of these explanations, I hope the noble Baroness, Lady Gardner, feels able to withdraw her amendment.

Baroness Gardner of Parkes
I thank the Minister for those remarks, but I do not agree at all. She said that she wanted parity between lay and professional members. My amendment does not say there should not be parity; all it is saying is that there should be some elected members. I do not go along with the view that you have an electorate that you are going to be worrying about. My point is that those ordinary dentists are selected by other practitioners because of their knowledge. They will not necessarily be put forward for appointment—it might never cross their minds to apply to an ad in the paper—but they are persuaded by colleagues that they are people who can help the profession.

The Minister talked about helping the public. That is why it is important to have people in particular who are involved in NHS practice: they are confronting issues that are quite different from other issues. It is in the interests of the public and patients to have what I am suggesting—a very small number of representative people.

The Minister talked about moving away because of conflicts of interest. I do not think any of that is accurate. As regards a “new transparency”—what is transparent about these appointments? We have seen all the appointments to the House of Lords done by one of these special appointments commissions. We were told we were going to have “people’s Peers”; we expected a hairdresser and a postman, and yet the only postman we have ever had here, as far as I know, is that hereditary man from Tasmania who came over to take his seat. The people who arrived from the Peers’ list were the people we would have expected to see anyhow—the great and the good, or at least the good. I think that the panels, no matter how transparent, are lacking in this respect. Ordinary dentists in general practice, who have a pretty rotten job and work very hard, will be rather upset that they will have no say at all in the people who are sitting on their governing body.

As far as I am concerned, over the years the governing body has always been as obstructive as possible, particularly to national health dentistry. It has not been helpful. Time after time motions have been brought before the General Dental Council and it has found them inconvenient—even the amendment that I will move later—mainly because it is an extra lot of bother for it if it does not want to know about it and violently opposes it. Ordinary dentists will be able to call the General Dental Council—or whatever it is to be called, I imagine it will have the same name—to account. I would like to think about what the Minister has said. I appreciate her comments. I hope to have an opportunity to talk to her and perhaps to convince her between now and Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Thornton
moved Amendment No. 136:

136: Schedule 8, page 168, line 12, leave out from “to” to end of line 13 and insert “any of the following—
 (a) the Royal Pharmaceutical Society of Great Britain,(b) the Pharmaceutical Society of Northern Ireland, and(c) the Hearing Aid Council.”

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

Baroness Thornton
It may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
The Committee stands adjourned until Wednesday 21 May at 3.45 pm.

The Committee adjourned at 7.55 pm.