Grand Committee

 Grand Committee

Wednesday, 21 May 2008.

The Committee met at quarter to four.

[The Deputy Chairman of Committees (Baroness Gould of Potternewton) in the Chair.]

Health and Social Care Bill

(Seventh Day)

The Deputy Chairman of Committees (Baroness Gould of Potternewton)
Before we start, I have to make the usual announcement. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is rung and resume after 10 minutes. I also understand that after about two hours there will be a comfort break.

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

On Question, Whether Clause 107 shall stand part of the Bill?

Earl Howe
We come now to the important subject of the standard of proof to be applied in fitness-to-practise proceedings and the proposal in Clause 107 to move all health regulatory bodies from the criminal to the civil standard. I approach the issue in the knowledge that the change is largely a done deal. The GMC has already decided to move across to the civil standard. It believes that this is the right thing to do for patients and that it can apply the standard in a way that is fair to doctors. Eight of the health regulatory bodies already use the civil standard, apparently without problem. So the reason for debating the clause is not to oppose the change but rather to ask questions about it.

The Government’s White Paper, Trust, Assurance and Safety, outlined the key differences between the criminal and civil standards, which I do not need to repeat. It then said that,

“the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true”.

This is a description of the so-called sliding scale of proof. The main argument for this is that, in the adjudication of a fitness-to-practise matter, we are dealing with what is essentially a protective jurisdiction; ultimately, it is the well-being of patients that is at stake. Under the criminal standard, a doctor may survive a challenge to his continued registration and yet, at the same time, come away with serious question marks over his competence as a practitioner. The evidence given by Lady Justice Smith to the Public Bill Committee in another place made clear her support for a move to the civil standard on the grounds that it was more appropriate for offences whose gravity fell short of the seriously criminal. I understand those arguments and, intellectually at least, can sign up to them.

The questions that rear their heads are to do with the implementation of the standard. The sliding scale almost inevitably opens up scope for inconsistency and therefore unfairness as between different cases of a similar kind. A judgment by a panel that the allegations against a doctor are of a certain gravity and therefore merit a certain standard of proof might not be the same judgment if it were made by another panel. This underscores the need for comprehensive guidance to panels as well as thorough training for panel members. It would be helpful if the Minister could say something about this, bearing in mind that there will not always be a legally qualified person chairing the panel.

One reason why Lady Justice Smith was sanguine about the GMC moving to the civil standard was the thought that a legally qualified chairperson would be familiar with how to apply it. By implication, someone who is not legally qualified will need considerably more in the way of an induction and training. We need to be sure that this is indeed happening.

One aspect of the sliding scale that troubles me is its potential to be unclear and therefore unfair to the professional whose practice is under scrutiny. At the start of a hearing, it may not be evident how high or low the bar of proof needs to be. How can one know what evidence will be required to prove a given matter of fact until one knows how the panel views the gravity of that matter? How fair is that lack of clarity on the doctor and his defence team? Equally, facts may emerge during a hearing that serve to make the defence less or more serious in the eyes of the panel than it appeared to be at the outset. How fair is it on the doctor if the bar of proof moves down or up as the proceedings progress? How will this movement be made known to the defence team? I would be grateful if the Minister could say something about that when she replies.

The BMA has softened its opposition to the change to the civil standard, partly, I think, because it recognises reality: the GMC is going to do it. However, it has consistently voiced a concern that is harboured by many doctors, which is that lowering the bar of factual proof in certain sorts of cases will, however subtly, lead to the practice of defensive medicine. Conscientious doctors, particularly when time is of the essence, want to go the extra mile for their patients. That sometimes means taking calculated risks, which may fall outside the usual norms of professional practice but which can be justified by the gravity of the situation and the lack of worthwhile alternatives. Not always will a doctor be able to consult colleagues about these decisions and not always is informed consent from the patient possible. However, we all know that many worthwhile advances in medical and surgical practice are made by those creative and imaginative doctors who believe that a new procedure is worth a try in the interests of a patient, particularly in an emergency. How ready will doctors be to do this sort of thing in the future?

In voicing a fear about the growth of defensive medicine, we are not necessarily talking about new and adventurous procedures. A GP conducting his ordinary practice may say to himself that he should play safe by referring patients for diagnostic procedures, which he would not otherwise have done, simply for fear that a wrong decision would, on the balance of probabilities, be viewed as incompetent by a fitness-to-practise panel. The unintended consequences of that frame of mind would be a huge rise in referrals of every kind and description. How confident is the Minister that this will not, in fact, be the result of these measures? If she is confident, what evidence is she relying on?

It would not, after all, be odd if doctors were to react in this way. One of the justifications of the move to the civil standard was spelt out in the White Paper, which said:

“There is currently a perception … that the criminal standard of proof … acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this … results in a culture of hesitancy and reluctance to refer cases to the GMC … It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment”.
 

If that is indeed the perception, which I do not doubt, it follows that part of the point of the change to the civil standard will be to alter perceptions in a way that encourages referrals to the GMC rather than discourages them. Doctors will not be slow to grasp this. Does the Minister expect that there will in fact be an increase in the number of referrals to the GMC arising from these changes? If so, is the GMC geared up to deal with that? I hope that she will be able to shed some light on how the Government view the introduction of the civil standard, not so much from a theoretical standpoint as from a practical one.

Baroness Finlay of Llandaff
I will speak also to the Question whether Clause 119 should stand part of the Bill. It is included in this group simply as a tidying-up exercise and to provide consistency.

My main question to the Minister is why this has to be in legislation. In another place on 15 May the Minister said:

“These rules are not contingent on the changes in the law being proposed in the Health and Social Care Bill”.—[Official Report, Commons, 15/5/08; col. 66WS.]
 

The GMC has said in its briefing that it does not need primary legislation to implement the civil standard of proof. If it is not needed in primary legislation and can be implemented anyway, why do we need this provision in the Bill? Sufficient doubts have been raised within the profession and by others outside to make one wonder whether it would not be wiser to allow this change to happen, to let it work through and then, if problems arise, to reverse the requirement to a criminal standard of proof at all times, as that would avoid the need for primary legislation. The change is happening anyway without primary legislation.

It is worth noting that, although it has softened its approach, the BMA feels that there is a lack of confidence in this measure among doctors—a view that I echo. I draw to the Committee’s attention the fact that the Court of Appeal has registered a concern over the confusion that can arise when the civil burden of proof is imposed. The House of Lords concluded that magistrates, for example, should apply the criminal standard in all cases and avoid ever using the civil standard. Even Dame Janet acknowledged in her report on Shipman that it would be unreasonable, without a legally qualified chair, to expect a panel to use the flexible standard properly.

It is worth noting what lawyers have done in relation to misconduct. The sliding scale of the civil standard links two extremes, the high end of which corresponds to the criminal standard—beyond reasonable doubt—while the low end corresponds to a balance of probabilities. The disciplinary tribunal of the Law Society and the Bar’s code of conduct require the application of the criminal standard of proof by tribunals dealing with misconduct of lawyers.

Courts have found it confusing when the burden of proof is undefined between the criminal and civil standards, and case law now dictates that the criminal standard of proof is to be used in disciplinary proceedings involving lawyers. There is a sense that the flexible standard could be applied fairly to the regulation of doctors but not to lawyers. The evidence used by those without judicial training and experience seems to have led to difficulties, such that lawyers are now judged only by the criminal standard of proof.

Therefore, I return to the fundamental question: do we need these clauses in the Bill? Is it wise to include them or, given that they are not needed, would it be much wiser not to have them but to allow the GMC changes to continue? I understand from the GMC that one reason why it wants to go to a civil burden of proof is that lesser sanctions would apply than someone being struck off—that is, imposing on a doctor remedial action, retraining, supervision and so on—and it feels that that would be easier. However, given that it is doing that anyway, I simply ask: why have these clauses in the Bill?

Baroness Tonge
As a member of the medical profession, although it is a long time since I practised, I was quite pleased to see this measure in the Bill. There is a tendency for doctors to put themselves on pedestals and to feel that they are a bit different from other professionals, but when we were told by the BMA—especially in its first briefing—that it would not like to move to the civil standard of proof because, if found guilty, a doctor would lose his livelihood, that seemed to me a weak argument, because that standard applies to all other health professionals. To lose your livelihood is just as important to a nurse, a physiotherapist or a pharmacist as it would be to a doctor.

I thought that the Bill would bring the medical profession into line with other professions and that we would be seen to be dealt with equally. I also thought that the civil standard of proof from the patient’s point of view—I hope that the Minister will correct me if I am wrong—allows other incidents and complaints to be considered when someone is before the panel to have their case heard. I may be wrong, but I believe that under the criminal standard evidence can be heard only on the incident that is being investigated and other complaints may not be taken into consideration. However, in cases where, for example, doctors are accused of molesting their patients and the complaint is dismissed the first time and maybe the second time and no one is quite sure about it, such complaints need to be taken into consideration. I hope that people will correct me on that or clarify the position.

My third point is about defensive medicine, which I, like everyone else, worry about. Defensive medicine is here. It has arrived and I do not think that it will be only this measure that makes doctors practise medicine more defensively. They will do so because there is more litigation; more people are prepared to follow the American model of suing and trying to make a bit of money if something has gone wrong in the health service. The health service does not have the funds that are available to private insurance companies to meet the demands of patients who sue, although that is another problem for another day. Defensive medicine is coming. Protocols and a lot of procedures have been introduced to do away with the need for a doctor to practise defensive medicine, whereby he knows what he has to do and the protocols that have to be followed.

I think that on the whole it is good that the Government are backing up the General Medical Council on this by bringing in this measure, but I would like to hear the Minister’s reply to the queries that have been raised.

16:00:00

Baroness Cumberlege
This is a terribly difficult issue and I was interested in the questions that my noble friend and the noble Baroness, Lady Finlay, asked. We need to tease this out.

I have been thinking about my work for the Royal College of Physicians on medical professionalism. After we completed our work, we held 10 roadshows around the country, which were supported by the King’s Fund, entitled, “Do doctors have a future?”. Not surprisingly, they attracted a wide range of clinicians and managers, as well as doctors, of course. The CMO’s report, Good Doctors, Safer Patients, had just been published. We were debating a wide range of issues, particularly whether we should retain the criminal standard of proof or change it to the civil standard. That debate was before the publication of the Bill and the suggestion that there should be a new body to hear cases, the Office of the Health Professions Adjudicator, was not in contention; that part of the issue was not discussed.

I remember some heated discussions at the roadshows by members of the medical profession who said that they felt that the GMC’s sanctions were so devastating to an individual’s livelihood and their reputation that the criminal standard should of course continue. However, others, particularly NHS employers, said to us that they felt that this high hurdle could lead to a situation in which a doctor survived a challenge and remained on the register but was not trusted to look after patients safely. As I understand it—I am sure that the noble Baroness, Lady Finlay, can put me right—that was the view taken by Dame Janet Smith in her fifth report on the Shipman inquiry.

Of course it is true that other professions have disciplinary bodies that are not a criminal court. In this case, there will be no criminal consequences following an appearance before the Office of the Health Professions Adjudicator, nor will the individual face a potential loss of liberty, as they would in a criminal case. Although the standard of proof is notionally lower, it has long been accepted that, the more serious the allegation, the more onerous the consequences and the greater the weight of evidence needs to be before any findings can be made, even on the balance of probabilities. That is what we are dealing with—the balance of probabilities.

When a person’s livelihood and reputation are at risk, low-quality or insubstantial evidence will simply not do; evidence has to be of the highest order. In reality, that may mean requiring such good-quality evidence that the panel is satisfied that it may in effect achieve the criminal standard of proof.

The important thing in all this, however, is that the principle is different. The great strength of the civil standard of proof, which, as my noble friend said, already governs the majority of the health regulators, is that it enables flexibility in imposing sanctions. There will be an option to erase doctors from the register in worse cases, but in lesser cases conditions may be attached. That is a point made by the noble Baroness, Lady Finlay. For instance, if a surgeon’s practice in operating keyhole surgery is dangerous, that person could continue as a surgeon but could be prevented from carrying out that particular procedure. He might have to consent to retraining or supervision before continuing, but he will keep his livelihood and it will certainly be safer for patients that he has retrained or been under supervision.

As so many of the other professions, such as teachers or the police, work to the civil standard, which is also used in all family courts, I do not see why doctors should be any different, as the noble Baroness, Lady Tonge, said. Rather, I think that it would be much better for doctors and much better for patients this way. I look forward to the Minister’s comments in reply, because there are clearly questions to be answered, but my overall feeling is that we should go for this new measure.

Baroness Thornton
Clause 107 requires all the healthcare professions’ regulatory bodies and the new Office of the Health Professions Adjudicator, OHPA, to use the civil standard of proof. Clause 119 requires the General Social Care Council and the Care Council for Wales to use the civil standard of proof. In practice, most of these bodies already apply the civil standard, but this clause enshrines the civil standard in primary legislation.

The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt. The civil standard, on the other hand, requires the decision-maker to be satisfied on the balance of probabilities that the facts are true or the events occurred—that is, it is more likely than not that the facts are true or that the events occurred. It is important to emphasise that the change to the civil standard will not remove the need for robust evidence to support serious allegations.

So where does the standard of proof apply? There are three steps in the decision-making process. First, the panel must decide if the allegations are true. Have the facts been proven? Secondly, if the panel considers that the facts have been proven, it has to decide whether the proven facts amount to an impairment of the practitioner’s fitness to practise. Finally, having heard factors in mitigation and other representations, the panel must decide whether to impose a sanction on the practitioner’s registration.

The standard of proof applies only at the first stage, where the panel is deciding whether the evidence presented by either party to the hearing is true. The civil standard is not relevant at stage two, in relation to the decision that a person’s fitness to practise is impaired. That is a matter for the panel to make a judgment on, based on its expertise and knowledge. Nor does the standard of proof apply to stage three—the decision on what, if any, sanction should be imposed.

I was asked why the Government believe that the civil standard is appropriate. Let me first say that the use of the civil standard of proof reflects the nature of fitness-to-practise hearings. The hearings panel is not a criminal court and is not applying the criminal law. The purpose of the regulatory action is to protect patients, not to punish the practitioner. We agree with Lady Justice Smith that medical regulation is a protective jurisdiction and that therefore the civil standard of proof is appropriate. This argument applies equally to other professions and not just to the health professions.

I know that there have been concerns that the use of the civil standard of proof is unfair to doctors. I believe that the use of the civil standard of proof in fitness-to-practise procedures will ensure a balance between fairness to the accused practitioner and the protection of the public.

Looking at how the civil standard of proof has worked for other health profession regulators, we find no evidence that the civil standard could result in unjustified adverse findings against a doctor, as ably described to the Committee by the noble Baroness, Lady Cumberlege. There have been suggestions that the change in the standard of proof will lead to more doctors being struck off. However, as I said, the standard of proof used does not determine the sanctions imposed; it just determines the level of certainty required in establishing whether the facts or events did or did not occur. The experience of the General Dental Council, which is still in the transition stage of changing to the civil standard, is that there has been no increase in erasures.

It is not as though changing from the criminal to the civil standard of proof is something new or untried. The civil standard of proof is already used by the majority of health and social care regulators. Of the eight health regulatory bodies, only three still use the criminal standard—the General Medical Council, the General Optical Council and the Nursing and Midwifery Council. The others and the regulators of social care workers have been using the civil standard successfully.

The General Medical Council has already, independently, decided to move to the civil standard of proof ahead of being required to do so by this Bill. The move to the civil standard matches best practice in other areas. For example, the Independent Police Complaints Commission has successfully used the civil standard of proof since 1999. The civil standard is also used by the Solicitors Disciplinary Tribunal and by other professions, such as architects, vets, teachers, actuaries and chartered accountants.

Concerns have been raised about the possibility of panels finding it difficult to understand how to apply flexibly the civil standard. I hope that I can reassure noble Lords by saying that the General Dental Council, which, as I said, is in the transition stage of moving to the civil standard, has told us that not only are its panels coping with this very well, but they are coping very well when they still have to hear some cases under the criminal standard. That is a testament to the effectiveness of the training that the General Dental Council has provided in preparation for the change.

I turn to some specific questions raised by noble Lords. The noble Earl, Lord Howe, raised the issue of training and asked what the GMC is doing to prepare for the change. The GMC has carried out an extensive training programme for those directly affected by the introduction of the civil standard of proof, including panellists, legal assessors—lawyers who advise panellists on points of law during hearings—its in-house legal team and GMC staff involved in fitness-to-practise work. The training programme has been tailored to meet the needs of that particular audience, so that legal assessors, panellists and panel secretaries receive fairly detailed training, which includes a number of legal judgments, while panellist training includes a number of case studies. The training for investigation staff, who are not directly involved to the same degree, provides an overview of the change.

The noble Earl asked how consistency in the application of the standard can be assured. In addition to formal training, the GMC provides regular bulletins and other communications to panel chairmen and legal assessors. This flow of information about process and procedure includes updates on appeal cases, including those on regulators’ cases, relevant judicial reviews and statements on salient points of adjudication.

The GMC has a panel development team, which deals with panellists’ inquiries, monitors panellist feedback, provides the secretariats for a panellist forum in regular meetings between GMC managers and panellists’ representatives, audits all panel decisions, provides feedback, takes responsibility for panellist recruitment and retention, carries out panellist appraisal and assessment, maintains the list and provides management information on panel activity. We expect that OHPA will consider having similar arrangements in place.

The noble Earl asked about legally qualified chairmen. As eight out of the 11 heath professional regulators already use the civil standard, the vast majority do not have legally qualified chairmen. Perhaps the proof of fairness lies in the very low number of successful appeals to the High Court. He also asked about hearings, facts and evidence. I have outlined what the fitness-to-practise panel will do. It will have the assistance of a legal chair or assessors to advise it. He asked whether we anticipate more referrals for hearings. The advice provided by CHRE is that there may be a limited impact on decisions at the investigative stage. Decision-makers at that stage will inevitably be influenced by perceptions of the likelihood of the facts underlying a complaint being proved. The General Dental Council has not found any increases in erasures at the decision stage of adjudication.

The noble Baroness, Lady Finlay, asked why this needs to be in the Bill. That was answered very well by the noble Baroness, Lady Tonge. We think that changing to the civil standard is the right thing to do. It is a recommendation of the Shipman inquiry, and many regulators are already using it. We want to ensure consistency, not just now but in future, so that all health and social care regulators use that standard. That is why it is in the Bill.

The noble Baroness, Lady Tonge, spoke about defensive medicine, an issue that was also raised in another place. The noble Earl, too, asked whether health professionals would practise more defensively, erring on the side of caution. That argument rests on the idea that under the criminal standard professionals might choose more risky but potentially more effective clinical interventions. The Government do not believe that that would be the case. We do not believe that healthcare professionals will behave in that manner as a result of this change. We have confidence in their high professional standards and commitment to their patients. Where there is doubt, uncertainty or significant risk in making such judgments, healthcare professionals, who usually work in teams with other professionals, would generally make such decisions in consultation with their colleagues to ensure consensus of expert opinion and agreement.

The noble Baroness, Lady Tonge, asked what civil standards allow one to consider when making a judgment. It has been suggested that the change to the civil standard of proof will enable a panel to consider hearsay evidence. It is up to the chair of the panel to decide the admissibility of evidence, having taken into account representations from the parties concerned. This is a matter of civil procedure, as dealt with in procedural rules, not of the standard of proof. Once the evidence is admitted, the facts have to be considered by the panel using the civil standard of proof. I confirm that the change to civil standards will not affect in any way the admissibility of evidence or whether new evidence can be considered during the proceedings.

The change to the civil standard of proof enshrined in primary legislation will address concerns that the use of the criminal standard protects the interests of the professionals at the expense of the interests of patients. There is no convincing argument that one set of healthcare professionals should be treated in a different way from another set of healthcare professionals. This clause will ensure that we maintain consistency across the professional regulatory bodies so that the same level of protection is offered to all patients, no matter what kind of professional is caring for them.

16:15:00

Baroness Finlay of Llandaff
The Minister made a statement on which I would appreciate some background. It was that the use, until recently, of the criminal standard has protected doctors, not patients. Where is the evidence for that? The GMC has been working for a long time to try to protect patients. That is in its mission statement and its long name. It is the General Medical Council, but its role is to protect patients; it is not there to protect doctors.

Baroness Thornton
I accept what the noble Baroness says, but I shall read out a quotation from the report by Nigel Pleming QC on the Kerr/Haslam case.

“There are clearly lessons to be learned by the GMC from the Michael Haslam case. One particular concern is whether or not there is any justification, in the interest of the public and of patients, for the retention of the criminal standard of proof at GMC disciplinary proceedings, and generally treating those proceedings as if the GMC was engaged in some form of pseudocriminal process. Of course, where the allegations are particularly serious—amounting, if the subject of police investigation, to a serious crime—it is less likely that the doctor will have acted as alleged. But that difficulty can be addressed without the need to adopt any recourse to criminal standards of proof, or the trappings of a criminal trial. Where the allegations would also amount to serious criminal wrongdoing, probability is, rightly, not easily established”.
 

The point is that the GMC has taken the right decision. I was not suggesting that it is not concerned with protecting patients—not in the least—but using a civil standard of proof absolutely makes the case that that is what it is doing.

Baroness Finlay of Llandaff
I understand that the GMC has been keen to separate the investigation from the adjudication, which is precisely what is being provided for here. However, I remain concerned that we do not have to have primary legislation to do this. All the arguments for going with the civil standard of proof are that that will make available appropriate sanctions against doctors. I should like to take this away and think about it, because it is happening anyway. When I spoke to the president of the GMC, he, too, said that he did not understand why this needed primary legislation.

Earl Howe
This has been a useful debate. I thank the Minister for her reply. What doctors will want to be confident about is that the process is fair, in the sense of being consistent—and, if I can use the word without being misunderstood, reproducible. They need to be able to predict in advance how the civil standard will be applied. It is still not wholly clear to me that they necessarily will be able to, which is why I am uneasy about this proposal.

We need to bear in mind the fact that two major changes to fitness-to-practise adjudication proceedings are happening more or less at once, the first being the change in the standard of proof and the second being the increase in lay representation. Like it or not, different lay individuals bring their own values to a particular allegation. If a doctor has been accused of conducting an inappropriate internal examination on a female patient, one person on the panel may see that as a minor deviation from best practice, whereas another could regard it as a serious assault. Even if the facts of the case are fully understood, those differences of values are bound to come to the fore on occasion. That is one reason why, when looking back at our earlier amendment, I totally take on board the GMC’s desire to make sure that its indicative sanctions guidance has some standing in the way in which penalties are administered.

It is not just a question of penalties; it is also a question of how facts are interpreted. In the case that I have just imagined, the balance of probabilities is not only about whether the doctor conducted the internal examination; it is also about why he did so, what his motivations were and how he conducted himself during the consultation. The judgment of a lay person on those matters could well be quite different from the judgment of someone who is medically trained.

I am not arguing against lay membership of panels but merely pointing out that, for the profession to be confident in the integrity and consistency of the process, the combination of a sliding scale and lay membership of panels may create uncertainty rather than confidence. I have a high regard for the GMC and its current leadership and have to say that its latest note to parliamentarians gives us reassurance about how it is approaching the implementation of the standard.

Baroness Tonge
I accept what the noble Earl has just said, but would it not equally apply to all professionals? That is my worry—that we are somehow singling out the medical profession for a different standard of judgment. I do not think that that is right. Would he apply the comments that he has made to judgment of all other health professionals?

Earl Howe
The point that I am making is not so much about the theory as about the practice. We are in a transitional phase with the GMC and, as will shortly be the case, with OHPA. A lot is happening at once; it is quite a major change. I do not doubt that some years down the track what the noble Baroness says will be entirely accepted. As I say, it is not so much that we cannot sign up to the theory of what is happening; our concern is about the practical consequences of the proposals. We need to make sure that they are being handled as doctors would want. I accept the Minister’s basic point. I think that, with the consent of the Committee, it is time to move on, but I once again thank all noble Lords who have contributed.

Clause 107 agreed to.

Baroness Gardner of Parkes
moved Amendment No. 137:

137: After Clause 107, insert the following new Clause—
 “Dentists register: non-practising dentists
 (1) The Dentists Act 1984 (c. 24) is amended as follows.
 (2) In section 15 (qualification for registration in the dentists register), after subsection (1)(a) insert—
 “(aa) any person who is a graduate or licentiate in dentistry of a dental authority who no longer practises dentistry;”.(3) In section 19 (regulations with respect to the register)—
 (a) in subsection (1)(b) after the word “fee” insert the words “, or non-practitioners reduced fee”; (b) in subsection (2A) for the words “a person’s name” substitute “the name of a person who practises dentistry”;(c) after subsection (2A) insert—“(2AA) Where the name of a person who falls within section 15(1)(aa) has been erased by virtue of failure to pay a fee prescribed under subsection (1)(b), that name shall be restored to the register on that person’s application if he pays the prescribed fee.””

The noble Baroness said: The amendment would give to dentists, through the General Dental Council, the rights that doctors already have under the General Medical Council. When I have asked the GDC and the Department of Health why only practising dentists can be on the register, the answer has always been that there was a flaw in the Dentists Act 1984, which did not allow my profession to be treated in the same way as the medical profession.

A letter from the Department of Health dated 2 April confirms that. For clarification, I shall mention another point in that letter, which was sent following Second Reading. It states:

“You also mentioned that the General Medical Council is entitled to hold a list of non-practising doctors. I thought it might be helpful for me to clarify that is not the case. The General Medical Council holds a single register which does not differentiate between practising and non-practising doctors. A doctor can choose to remain on the register after retirement on payment of the appropriate fee. Currently there is an age related waiver of the registration fee for registrants over 65 years of age”.

I was wrong in thinking that the GMC holds separate lists; it holds both practising and non-practising doctors on its list.

The General Dental Council used to have an age-related reduced fee for dentists. In 2002, this was £15. In 2003, it jumped to £40—more than double—and, in 2004, it was abolished. Any dentist thereafter was asked to pay the full fee of £388. That was an almost a tenfold increase for older dentists, from £40 to almost £400. The current fee is £438. Those who believed that that was too great an increase for people not actually in practice, and therefore without an income and unable to claim tax deduction, decided not to pay. I was one. I remember that I received a notice saying that I would be “struck off” the register—a phrase used for malpractice. That terminology caused such offence that it was soon amended; I understand that the phrase that is now used is, “Your name will be removed from the register”. It is believed that about 2,500 dentists who would probably have been happy to pay, say, £100 a year were struck off that year, representing lost revenue of £250,000 to the GDC.

There is a further problem in that currently the register contains only the names of practising dentists who have complied with the continuing professional development—CPD—criteria. That was phased in from 2002. An annual practising certificate is available to those who have paid the annual fee of £438 and done the 250 hours of continuing professional development, 75 of which must be verifiable, over five years. There is no provision for leave of absence from the register for illness or maternity reasons and, if a dentist’s name is removed, he or she must apply for reinstatement and pay an additional fee of £110, making the fee £548. Doctors can and do remain on the medical register without a practising certificate. The difference is that only those with a practising certificate can practise. That is what I am suggesting for dentists.

I consider it to be in the interests of the public and the profession that dentists should be entitled to apply the same principles to their register—that the right to practise will belong only to those who have an annual practising certificate. It is important to make it clear that I am not trying to force the General Dental Council to introduce such a system; that would be for that body to decide in consultation with the profession, I would hope. My intention is simply to remove the legal obstacle that I have been told by members and past presidents of the GDC has prevented it from doing this. I find it hard to credit that the GDC opposes my amendment and is even lobbying against it. It is only an enabling amendment.

16:30:00

The amendment would also be appropriate when revalidation is introduced; it would avoid the need for further legislation at that time. I have a copy of an article from GMCtoday entitled, “Your Licence to Practise”, which is about doctors. It states:

“In future, there will be three options. You may hold registration plus a licence to practise. You may decide to hold registration only, or you may take voluntary erasure from the register”.

The article goes on to ask:

“Why would a doctor want to hold registration only?”.

The answer, the article states, is:

“When the concept of revalidation was first introduced back in 1998, a significant number of doctors who are not in active practice expressed concern that they would lose their connection with the GMC. They saw their GMC registration as part of their professional identity. We will therefore make it possible for them to maintain their connection with the GMC by continuing to hold GMC registration, but without a licence. There will be a cost for this, although it will be less than the cost of holding a licence plus registration. However, doctors with registration only will not be able to practise. Of course, doctors who see no advantage in holding registration only will be able to take voluntary erasure from the register. This will cost them nothing”.

I have received many letters of support from dentists and it is interesting to see the different angles and requirements that they have. I shall mention a few of them. The first letter is from someone who complained on three grounds. The first was that he would no longer be able to sign people’s passport applications. I do not think that non-practising doctors can do that, so that is not a relevant point. Secondly, he was unable to complete any former employees’ documents for GDC registration; in other words, he had been the principal dentist but could not sign for any of those who had worked for him unless he still had a GDC registration number. Thirdly, he stated that,

“the Dental Defence Union advises that I am not covered for discretionary assistance in respect of the Good Samaritan’s Act unless my name is on the GDC Register”.

That is important, because in France the obligation is on you to be a good Samaritan. In this country, it seems that everything is against your being a good Samaritan, because people can sue you about everything.

I shall read only a snippet of each letter, otherwise we would be here for days—and I have brought only a few of them. The next letter states:

“There are many retired dentists who could contribute to the profession in positions that do not involve clinical contact with patients, but those positions still require them to be registered”.

I have been given examples about writing for or editing journals and so on. The letter continues:

“Society is losing out on a valuable source of expertise … I do not find the GDC’s attitude to be consistent with care for the public and it is not representative of the profession who pay for its existence”.

Another letter states:

“Even though retired, I still write a monthly column for Dental Practice”.

These are cases where people should know that these were qualified dentists. Another letter provides a different angle and states:

“My former partner … in 1990 at the age of 32, contracted an illness after doing voluntary dental work in Africa. It was ‘diagnosed’ as ME, totally debilitating and was sufficient to make him retire from clinical dentistry”.

The letter goes on to state how he needed an income and so on and that he then qualified as a lawyer—and he is doing all right. This demonstrates the case of someone who is young and unable to continue practising. Perhaps he could have returned to dentistry despite that condition, but because he was so disillusioned by being removed from the register, was unable to afford to pay the fee and there was no leave of absence, he did something different. However, he is a loss to the profession.

Another letter says:

“Of course there must be checks and balances. Of course the GDC must ensure the protection of the public, but its hands are tied and it cannot make the choices which it would wish”.

I dispute that statement from that dentist, because, as I say, the GDC is lobbying against this proposal, as if I was trying to force it to do this. All the indemnity insurance is covered.

Women dentists wanting to have a family might want leave of absence for a couple of years—but, no, if they want to do that, they must either pay the full fee for continuing professional registration or go off the register and pay the additional fee to come back. There is no provision whatever for career breaks, while doctors, of course, can have them. Someone told me that, when they had said how sad it was that they had to go off this year, they were treated very abruptly on the telephone by the GDC and got no sympathy at all. Someone else said that he was “virtually excluded” from his profession, which he found very hurtful. He went on to say:

“My parents made great sacrifices in the 50s to get me through Dental School”.

In another letter, a man from the Society for the Advancement of Anaesthesia in Dentistry said:

“As Hon. Secretary of SAAD I am obliged to be on the register when giving advice to dentists, and when I am examining. This means that I must attend courses that have no relevance to my current situation in order to fulfil my CPD requirements”.

A number of people have told me that they serve on boards or even trusts and cannot claim to be dentists because they are no longer on the register.

The most interesting letter of all was from a woman dentist, who told me how hard this was fought by the profession. She said that members of the GDC had tried to get such a measure through but were told that it could not be done on legal grounds. She said that she was now 85 and that she had qualified at the age of 21 in 1944, having spent the war years studying in King’s College, London. She survived all the doodlebugs and everything else. She said:

“I followed my father into dentistry and it is a profession that has been in my family since very young”.

There were seven of them, and apparently they were all dentists. She went on to say:

“It is however to be very regretfully my last”—

that is, the last year that she will be on the dental register—

“after 64 years”,

and that she would,

“soon be forced off … being unable to continue undertaking the required full CPD”.

She has,

“undertaken 80 hours of verifiable CPD”,

but she finds that at 85 it is not easy to go on doing that, which I can understand. She says:

“You will understand therefore why I am deeply upset to have my connection with dentistry now broken and to have my name removed from the Dental Register, which will be obligatory when my current five year term of CPD finishes this year”.

There is a lot more of great interest in the letter, which goes on to say:

“It would … seem that this present attitude of the Council is contributory to turning what was once a wonderful and respected profession, happy to work within the NHS, into the turmoil that we now see in the country”.

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

“Unfortunately as you probably know the GDC is lobbying quite hard against the change”.

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

“negative responses despite trying to offer some solutions”.

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

“Whether this is a fault or not depends on one’s point of view I suppose. I can imagine various ways of doing what you want—by enabling the creation of a non-practising category (with the right to use the protected titles but not to practise dentistry) or by separating completely registration and licence to practise, with different requirements in each case”.

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

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

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

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

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

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

The noble Baroness made a powerful case. I would like to reassure her that, should the view of the General Dental Council on this point change in the future, the Government would consider making such a change through an order under Section 60 of the Health Act 1999. We do not consider that primary legislation would be required. It is therefore not necessary to make such a provision in this Bill, as we already have the flexibility to do this through secondary legislation, if the need arises. I can feel a campaign coming on here. We do not think that it would be appropriate to accept this amendment without the agreement of the General Dental Council, so I hope that the noble Baroness, Lady Gardner, will feel able to withdraw it.

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

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

Amendment, by leave, withdrawn.

Clause 108 [The Council for Healthcare Regulatory Excellence]:

[Amendment No. 138 not moved.]

Clause 108 agreed to.

Clause 109 agreed to.

16:45:00

Clause 110 [Powers and duties of Council]:

Baroness Finlay of Llandaff
moved Amendment No. 139:

139: Clause 110, page 55, line 34, after “general),” insert —
 “(a) ”

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

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

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

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

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

“investigating particular cases with a view to making general reports on the performance by the regulatory body of its functions”,

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

“to search or inquire into with care and accuracy”.

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

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

“The Secretary of State may give directions to the Council as to the manner in which the Council exercises its functions”.
 

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

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

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

As my noble friend said, new Section 26(3) gives the Secretary of State the power to direct. That undermines the CHRE’s independence and is unnecessary. One point not made overtly by my noble friend is that, as the regulator covers all the countries in the United Kingdom, this provision, which refers only to England and Wales, creates an imbalance with the devolved Administrations, which could be subject to conflicting requirements. At present, the Secretary of State requests the regulator to do some work. Although I know that the noble Lord, Lord Walton, is anxious to abolish this regulator, it seems to me that it is an important part of the regulatory jigsaw. We know it to be a reasonable body; it has never refused a request from the Secretary of State. Independence allows some practical negotiation on the scope, timing and use of available resources.

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

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

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

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

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

Amendment No. 139A would amend new Section 26(4) of the National Health Service Reform and Health Care Professions Act 2002 by replacing the word “investigating” with “scrutinising”. Before saying why I cannot support this amendment, I must first explain that Section 26 of the 2002 Act sets out that the CHRE may do anything that appears to it to be necessary or expedient for the purpose of, or in connection with, the performance of its functions. Section 26(2) sets out what the CHRE may do, which includes investigating and reporting on how each regulatory body has performed its functions. I know that noble Lords will agree that the ability to report on how each regulatory body does its job is crucial to the CHRE in holding the regulators to account on behalf of patients and the public.

17:00:00

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

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

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

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

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

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

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

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

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

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

I feel that I have to defend my Minister of Health in the National Assembly for Wales, with whom I had a constructive meeting yesterday and who is very engaged in issues for healthcare professions at a local level within Wales. It would be hard, within a devolved pattern of healthcare delivery, to find that there was a consultation but that, even if the Minister disagreed strongly, something was somehow imposed. But with those caveats around the amendments that are not mine, I shall not press my amendment.

Earl Howe
I am grateful to the noble Baroness for giving way before she advises the Grand Committee on what she would like to do. On my own two amendments, I think that the Minister’s replies were rather less convincing than some of her other replies have been. To use the word “investigating” in relation to the performance of a medical regulator is entirely appropriate. The CHRE can be tasked and is tasked with investigating the performance of the regulators. However, to say that it may investigate individual cases in support of that task is an unnecessary adherence to symmetry in the drafting, if I can put it that way.

On Amendment No. 141, it seems to me that to say that,

“the Secretary of State may give directions to the Council as to the manner in which the Council exercises its functions”,

is a very broad power of direction. I note what the noble Baroness has said about how that power might be used and that there is no sinister intent, but to give the example that Ministers may want to direct the council as to how it prioritises its workload is very odd. That can surely be done without the council being directed.

I shall need to have further thoughts about both the amendments between now and Report, but of course I shall not press the amendments in Committee.

Baroness Finlay of Llandaff
I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139A and 140 not moved.]

Clause 110 agreed to.

Clause 111 [Powers of Secretary of State and devolved administrations]:

[Amendment No. 141 not moved.]

Clause 111 agreed to.

Clauses 112 and 113 agreed to.

Clause 114 [Responsible officers and their duties relating to medical profession]:

Baroness Finlay of Llandaff
moved Amendment No. 142:

142: Clause 114, page 58, line 30, at end insert—
 “(1A) Any person eligible to be nominated or appointed as a responsible officer shall be registered with the General Medical Council.”

The noble Baroness said: We come to a slightly different part of the Bill, which relates to responsible officers, who are being charged with the early identification of problems and thereby remediation of problems before they get to the point where they damage patient care. As a principle, that is to be welcomed. There are rigorous and well established processes already, but they might prove impractical in relation to responsible officers as outlined in the Bill. This does not really relate to those working in trusts, where there are already clear appraisal processes, but it relates to those working in general practice. There is a concern that the responsible officer might be someone who is either too close to or has some bias against the person whom they are overseeing.

The way in which the Bill is drafted gives rise to the concern that the responsible officer does not necessarily have to be a registered medical practitioner. If one is looking at a degree of self-regulation and the early identification of problems, there is a lot of wisdom in making sure that the responsible officer has a medical background. This is currently the case in trusts, where the medical director is the person to whom the doctor would be answerable.

Amendment No. 144 has been drafted to cover situations where personal issues are involved. In such cases the responsible officer is not automatically designated but provision is made for an alternative responsible officer to be appointed. Two examples of where this might apply have been brought to my attention by doctors. The first example is a marital dispute involving two doctors, where either they have been married and then divorced or one of them has had an involvement with the spouse of the other, which can create a tense and difficult environment. The other example, a situation which has already arisen, is where the medical director of a PCT had a serious falling out, at practice level, with one of the partners and the partner had nowhere to go to seek support. She was very keen to have the choice of going to a responsible officer at a neighbouring PCT for her professional registration to be overseen and scrutinised because of the fear of vindictive recriminations against her.

That is the background to the drafting of the amendments. I have discussed the amendments with the Medical Defence Union and the Medical Protection Society, which is particularly supportive of them. I beg to move.

17:15:00

Earl Howe
It is clear from my own recent discussions with the medical profession and bodies that represent doctors that the proposals in the Bill for the creation of responsible officers have created a good deal of unease and uncertainty. Underlying that unease is a mixture of thoughts. The responsible officer will have to look in several directions at once. He will have to command the confidence of his peers, his employers, the GMC and patients. He or she will have a lead role in supporting good clinical governance and in the performance management of doctors. He will have to take part in the management of clinical investigations arising from adverse incidents or complaints. To achieve all this, he or she has to be a person with an unusual set of competences and skills. The question that I have asked myself is how many people of such calibre there are, given the large number of trusts that need to make these appointments.

By any measure, the responsible officer will perform a pivotal and powerful role in the trust of a kind that, not to exaggerate the point, could make or break the health of the organisation. As we have heard, it is the Government’s view that medical directors will often be the people best placed to become responsible officers. I have no reason to dissent from that view, although I do not think that it will necessarily be the right thing to do in every case. What will matter above all are the calibre and personal qualities of the individual.

There is an important pastoral dimension to the role—the need for the responsible officer to be able to support and assist doctors who may be struggling for any reason. That takes a certain sort of person. Equally, it is obvious that internal politics and professional jealousies can influence, or be seen as influencing, the agendas that underlie how poor performance is managed. I very much identify with the points made in that context by the noble Baroness, Lady Finlay.

Good training in the role will therefore be essential. Good training has to be based on best practice. Examples of best practice need to be identified and built on. It is not clear to me who will undertake this rather special sort of training and I should be glad if the Minister could say something about it. How will we be able to arrive at a position where, as far as possible, there is consistency of decision-making and practice around the country among responsible officers? Indeed, how will we know whether there is consistency? How will we know whether a responsible officer has in some way fallen short or abused his or her position? Amendment No. 143 attempts to get to that particular issue.

Inevitable tensions will arise in the role of a responsible officer where that person is also the medical director. Acute trusts have performance targets. There are often shortages of doctors in key specialties. There is always an imperative to maintain patient throughput and to keep the doctors that one has in post working. At the same time there is a need to appraise and revalidate doctors fairly and to investigate adverse incidents fairly. How will a responsible officer, as part of the organisation’s management team, be able to balance those opposing pulls? Will he or she not have an inbuilt conflict of interest, and how will that conflict be reconciled? How do you ask someone to be loyal to an employer while at the same time being fair to professionals and patients by upholding professional standards in a scrupulous way? That will not be at all easy and I do not envy anyone faced with such an onerous burden.

My other question relates to doctors who are not employed by an NHS organisation. There are many doctors practising independently in all sorts of environments and capacities—not only GPs, who are the most obvious example, but doctors in industry and commerce, doctors in the Armed Forces, pharmaceutical physicians and other doctors in private practice of all kinds. Who will act as responsible officers for these practitioners, especially in places where there is often no management structure? Will it be a mandatory requirement in PCTs that there should be a medical director, as there is in acute trusts? It would be helpful to have the Minister’s guidance on that as well.

Finally, it would be useful to hear from the Minister how a responsible officer will liaise and interact with the GMC affiliate. The plans for GMC affiliates have changed considerably since they were first announced. We need to be clear how duties and responsibilities will be divided between responsible officers and affiliates.

I wonder whether this idea would benefit from being piloted in certain locations before being rolled out universally. Does the Minister think that that might be sensible and are there any examples from abroad of the model from which lessons can be learnt? Does she think that the concept of having one responsible officer in an organisation is consistent with the proposal, which I have seen advanced, that the responsible officer could in practice delegate his or her responsibilities to a deputy? It seems to me that the idea of a deputy somewhat cuts across the notion of individual accountability, but the idea has been put forward as a way of spreading what will undoubtedly be a considerable workload on the shoulders of the responsible officer. At the very least, that workload will require administrative support. Will it be up to individual trusts to make their own arrangements to provide such support? I hope that the Minister can shed some light on these complex matters.

Baroness Cumberlege
As I understand it, these new sections codify and make statutory the position of the medical director that exists in many trusts. However, as my noble friend said, the Bill extends the role to PCTs and the private and independent sector. The responsible officer role is intended to protect patients, improve systems and act early to support and remediate doctors when concerns are raised about their practice. This appears to be in line with the wish of the noble Lord, Lord Darzi, that health services should be clinician-led, a concept that I warmly welcome. In the past, many members of the medical profession have shied away from taking the responsibility of managing and running the organisations in which they work. I do not find that surprising, because their education is about combating illness and restoring health. It is only when doctors achieve a consultant post that they are suddenly thrown into the maelstrom that is management. Without preparation, it is hardly surprising that they shy away.

My company is designing and delivering courses on leadership for SpRs and trainee GPs. Our participants are bright, keen, wonderful young people, but they are breathtakingly naive when it comes to understanding the organisation in which they work. They express anger that, after working in the service for eight years, they have never met a member of the top team and have no idea what the chief executive or the director of finance does. They have no idea what a PCT is, yet these are the people who will shortly be in charge of a clinical department. So what do they do? They ask the previous incumbent, who says, “Well, this is the way I have always done it”, so we get no change.

Huge efforts are being made by deaneries, strategic health authorities and the department to ensure that the next generation of consultants, senior partners in general practice and public health doctors have the skills and support necessary to ensure that we have successful leaders, not only in clinical fields but in the organisations in which they work. The responsible officer will be a critical part of that leadership and should not only put into place and maintain the clinical governance systems but ensure that all doctors are providing a safe, high-quality service. As I understand it, he or she will also ensure that appropriate training and professional development are available to doctors. Perhaps the Minister can tell me if that is part of the role.

Will this person identify issues at the earliest possible stage and help doctors to get on track before problems escalate? What mechanisms are available to an NHS organisation whose responsible officer shuns the difficult decisions and fails to be tough and to call his colleagues to account? I mention this because I have often heard of medical directors who have tried to take tough decisions but have been urged by their colleagues to be gentle. I have heard the phrase, “Just have a word with him or her in the car park”. However, car park conversations do not work and the responsible officer will have to have the bottle to use the organisation’s HR policies; in some cases, those exempt doctors, which I do not think is right.

It is essential for the responsible officer to be a part of the senior clinical leadership of the healthcare organisation and a member of the management board. That will make it easier to take appropriate action where problems arise that may be caused by dysfunctional systems rather than the performance of individual doctors. For example, I have been told of a case where the hospital introduced single-use instruments, which resulted in a number of post-operative complications. It transpired that the problem was not related to the performance of the doctors but was to do with the design of the instruments. In other cases, the problem might turn out to involve relations between several members of the clinical team rather than one individual. In such cases, a responsible officer who is a senior clinical leader in the organisation must be in the position to take whatever action is needed to protect patients and to support and help the individuals involved.

I share the concerns of my noble friend about consistency, but I suspect that organisations are so different that they will probably want to have different systems. Let us take as an example the acute trust in Leeds, which is on two sites and may have 2,000 doctors. One would expect perhaps to have more than one responsible officer in that trust. Clearly, as my noble friend said, it is important that accountability is clearly defined.

I take the point made by the noble Baroness, Lady Finlay, about GMC affiliates. This seems to be a moveable feast. We are never quite sure how that whole concept is going to relate to responsible officers. I should be grateful if the Minister could tell us a bit more about that.

Baroness Tonge
I do not want to say much on this issue, as it really has all been said; it has been put so elegantly by the three speakers that I would not attempt to emulate them. I hope that the Government will take on board the real unease that exists about this concept of responsible officers. Anyone in the Department of Health who has worked as a clinician in a trust, as they are now, or in another organisation will know of the difficulties, the jealousies and the backbiting; they will know how clinicians complain all the time that people get extra money and extra awards for doing things that are not clinical. This is another opportunity to take a clinician away from his work and give him a whole load of responsibility that, as has been elegantly pointed out, he will not have the training for. I shall not say any more on that, as it has all been said.

I have talked to lots of my colleagues, some of whom are still practising and some of whom are retired. They are horrified by the concept of responsible officers. They do not see how it will work. I have heard phrases such as “management creep” bandied around. I have been asked what the merit award will be, or whatever the modern equivalent is. People have said, “How much will you get for that, then?”. They have said, “We will be left to do the clinical work and the out-patients and to deal with all the work while he prances around as a responsible officer”. Doctors working together are often very unkind to one another. I think that we should think hard before we proceed along this route.

17:30:00

Baroness Thornton
Amendment No. 142 would place a requirement in the Bill for responsible officers to be registered with the General Medical Council. Let me be clear from the start: I agree with the principle of this amendment and I am happy to confirm that the regulations will include a requirement for a responsible officer to be a registered medical practitioner.

Proposed new Section 45A(5)(a) of the Medical Act 1983 provides the power for regulations to set out the requirements for a person to be appointed as a responsible officer. An expert group is advising on what those additional requirements will be. In my view, in order to provide greater clarity, the regulations should set out all the conditions that must be met for appointment as a responsible officer and not just some of them. I hope that the noble Baroness, Lady Finlay, will accept my public commitment that her amendment will be reflected in these regulations.

Amendment No. 143 would provide that regulations requiring the appointment of responsible officers may include provision for evaluating their performance in the role. I agree that it is important that we ensure that responsible officers have the ability and capability to carry out their duties and I am glad that this issue has been raised. I can reassure the noble Earl and the noble Baroness, Lady Cumberlege, that responsible officers will already be evaluated, because they will be registered medical practitioners.

The noble Earl asked who the responsible officer’s responsible officer will be. We have been clear that every doctor in the United Kingdom will relate to a responsible officer. We are also clear that responsible officers will have to be registered medical practitioners. Responsible officers will therefore have to relate to a responsible officer. In our view, it would be appropriate for the responsible officer to relate to one in another organisation. Details will be set out in regulations and guidance following advice from the expert working group that is currently sitting.

Under Amendment No. 144, designated bodies would have to provide an individual with an alternative responsible officer if they were requested to do so. If the amendment’s intention is to ensure that a doctor’s career is not damaged unfairly when there is conflict of a personal nature between the doctor and the responsible officer, I fully agree with the principle. However, the amendment as drafted would enable individuals to change responsible officers every time they thought that they might be in trouble. At the very least, this could result in delays in handling cases and, at worst, it could result in a failure to protect patients in cases where the alternative responsible officer was less familiar with the overall context. We should perhaps look instead to the document Maintaining High Professional Standards in the Modern NHS, which already provides guidance for the NHS on handling cases of poor performance for employed doctors.

I think that Amendments Nos. 147 and 148 are intended to ensure that, when a concern is raised about a doctor, any underlying issues are identified and addressed, not just those that directly relate to disciplinary action. Amendment No. 147 would make responsible officers responsible for ensuring that action was taken when a system failure was identified. I have some sympathy with this proposal. It is certainly our intention that, where investigation of a concern about a doctor’s performance reveals an underlying problem with the system, the responsible officer should have a role in ensuring that appropriate action is taken. That is why we have said that the responsible officer should be a senior doctor, either at board level or reporting directly to a board member. That will ensure that he or she is senior enough to do something about any system failure.

However, this amendment would require the responsible officer to ensure that appropriate action was taken in every case of system failure, whether it stemmed from concern over individual doctors or not. Although in some cases healthcare organisations may wish to combine the roles of responsible officer with wider clinical governance responsibilities, we believe that that is a decision for individual healthcare organisations rather than for the Department of Health.

Amendment No. 148 would ensure that appropriate action under Clause 115(1)(c) was timely and included support and consideration of training and remediation. I can assure the noble Baroness, Lady Finlay, that, although this is not set out in the Bill, we will set out in guidance that responsible officers will have to ensure that support is provided to help doctors to undertake their role efficiently and effectively.

The Earl of Onslow
I heard the Minister say that the amendment would make responsible officers investigate every system failure. Can she tell me when responsible officers should not investigate system failures?

Baroness Thornton
It may be appropriate that somebody else in the organisation does so.

The Earl of Onslow
If the man is responsible for running something, why should it be the responsibility of somebody else if a mistake has been made? Surely it is up to him as the responsible man.

Baroness Thornton
There may be occasions when it is one of his colleagues’ responsibilities to solve the problem. That is not to say that he will not be responsible for it, but it may not be something that he or she should necessarily deal with. It is important to recognise that there will be cases when it will not be appropriate to provide all forms of support—for example, in the most serious cases, when a criminal prosecution is being undertaken. I do not think that that is the purpose of the amendment, although I have a great deal of sympathy with the intention behind the noble Baroness’s amendment.

Amendment No. 149 proposes that the responsible officer role should be piloted in at least two geographical areas. I understand the reasoning behind the amendment but I hope that I can reassure the Committee that, in creating responsible officers, we are putting existing best practice on a statutory footing. A principal element of the role of responsible officer is clinical governance. Much of the role that we are proposing for responsible officers is already undertaken, as has been said, in the best organisations and has already been shown to be effective. However, we know that this best practice is being inconsistently applied, which is one reason why we have introduced these measures in this Bill.

The noble Earl, Lord Howe, asked about the safeguards to ensure that responsible officers have a good reputation and can be trusted to do the job properly. The requirements for appointments will be set out in secondary legislation. However, we expect that responsible officers will have to be registered with the GMC and that they will be senior doctors in their organisation. As such, they can be expected to have already established a reputation and standing among their peers. In most organisations, that senior doctor will be the medical director or someone similar.

The noble Earl and the noble Baroness, Lady Cumberlege, also asked how GMC affiliates fit in with responsible officers. The responsible officer will work for the NHS and other healthcare organisations and he or she will be based in the organisation. The GMC affiliate will work for the GMC. He or she will be the GMC’s local representative. Clearly, the GMC affiliate will be the responsible officer’s link point to the national regulatory framework of the GMC to ensure that there is a sensible relationship between legal clinical governance and national professional regulation. That is what is intended. I hope that I have been able to reassure noble Lords—

Baroness Tonge
I am sorry to interrupt the Minister but I am extremely unhappy about this. She says that the responsible officer is the representative of the GMC within that organisation.

Baroness Thornton
That is not what I said.

Baroness Tonge
Is there not the potential here to undermine an organisation’s whole board of management? I cannot see how it will work in practice. The Minister says that this person will be a member of the board, but surely all members of the board, whether it is the chief nursing officer or the medical director, are responsible officers. That is what they are there for; they are responsible for what is happening in their bit of the organisation. I do not see the point in having another person—who will require extra training and be taken away from his or her clinical duties—roaming around as a sort of spy on the staff. I really do not understand how this will work in practice without causing a huge amount of ill feeling.

Baroness Thornton
The medical director’s line of accountability will continue to be to the board. Clearly, responsible officers will need to work closely with the GMC over issues relating to the revalidation of doctors’ fitness to practise. I think that the noble Baroness may be confusing the post of responsible officer outlined in the Bill with people who take responsibility. Obviously, they are not the same. The GMC says:

“The establishment of ‘responsible officers’ at a local level means that for the first time there will be a nominated individual at a local level who will have a statutory responsibility for fitness to practise matters. We also welcome the clear distinction between the roles of responsible officers and those of the GMC. Responsible officers will be locally employed and not be employees of the GMC. Their appointment will strengthen local arrangements and is not an extension of the GMC’s powers to the local level”.

Baroness Finlay of Llandaff
I am most grateful to the Minister and I am particularly grateful to the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, who spoke so eloquently to these amendments—far more eloquently than I was able to do. They filled in a lot of the areas that I had not done adequately when I moved the amendment.

The Minister spoke about regulations. I am reassured that the responsible officers will always be medical practitioners and that there will be guidance to accompany their role. I hope that that will include clear guidance on remedial action, including training, retraining, support and so on. However, I am still concerned about system failures and how they will be rectified. I hope that in the guidance power will be given to the responsible officer to ask questions about system failures. These failures will almost inevitably involve people from other professional groups, clerical staff and possibly volunteers and so on, and they may involve other trusts as well where, ultimately, the problem has landed on the clinician. However, an accumulation of system failures may have occurred—for example, out in the community before a patient went into hospital or in the hospital before a patient went back out to the community, or it may be a system failure in a relationship between health and social care.

When a crisis occurs, it seems to land in the doctor’s lap. I have a real concern that this does not seem to be clearly thought through in relation to system failures, remedial action across the board and the powers that the responsible officer will have, because unless that officer has powers, when they try to investigate something they will hit a brick wall and be told that it is outside their area of jurisdiction or whatever, yet the matter may be really important in terms of what needs to be done. With that in mind, I have been minded to suggest pilot schemes. I hope that the Government will think carefully about pilots before simply rolling out their proposals across the board, so that lessons can be learnt and problems ironed out.

The final group about which I am concerned is locums, whom the Minister did not address in her reply. When people work in a hospital trust in either a training post or a permanent post, it is easier for them to be attached to a responsible officer, but locums are very mobile and they may leave their problems in one area and move into a different area. They might move from England to Wales or vice versa, or up to Scotland. Allocating responsible officers to them will be particularly difficult. I know that the noble Earl, Lord Howe, raised the issue of the Armed Forces, which also needs to be addressed. I would be interested to hear the Minister’s response to my questions.

Baroness Thornton
I shall need to reflect on the questions that the noble Baroness asked, because she has made legitimate points. I am sure that someone, somewhere, knows all the answers—but it is certainly not me at this moment. I would like to reflect and perhaps discuss those issues with the noble Baroness. We will write to her.

Baroness Finlay of Llandaff
I am most grateful to the noble Baroness for her reply. In light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 143 and 144 not moved.]

Lord Tunnicliffe
moved Amendment No. 145:

145: Clause 114, page 61, leave out lines 37 to 39 and insert—
 “(3) A statutory instrument that—
 (a) contains regulations made by the Secretary of State under section 45A, and(b) is not subject to a requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,is subject to annulment in pursuance of a resolution of either House of Parliament.(3A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) the first regulations under section 45A that include provision made by the Secretary of State by virtue of section 45B unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

The noble Lord said: I shall also speak to the other amendments in the group. This group of government amendments has been tabled in response to the recommendations of the Delegated Powers and Regulatory Reform Committee published on 12 March. The Government have accepted all the committee’s recommendations in full and these amendments amend the Bill accordingly. A copy of the formal response from my honourable friend Ben Bradshaw to the committee has been placed in the House Library. In view of the fact that the amendments simply insert the committee’s recommendations into the Bill, I shall not speak to them at length, although I will be happy to respond to any points that noble Lords may have. I shall speak briefly to Amendment No. 197, however, because it touches on the delicate issue of hybridity.

Although this was not included in its report on the Bill, the committee also helpfully identified an oversight in relation to a regulation-making power in Part 3, which Amendment No. 197 seeks to correct. Under Part 3, in urgent situations, proposed new Section 45R of the Public Health (Control of Disease) Act 1984 enables regulations to be made under an emergency procedure. This would be necessary where it was deemed that an urgent action was needed to protect the public from a significant health risk. In such a circumstance, regulations could be made to come into force immediately and would later be required to be approved using the affirmative resolution procedure, or they would cease to have effect after 28 days.

I should point out that such regulations could be considered hybrid if they affected only a certain group of individuals or businesses where a public health risk was identified, not others of a similar class. As noble Lords will know, the parliamentary procedure for hybrid instruments can be lengthy. This would not be appropriate where the public could be at risk. That is why Amendment No. 197 seeks to remove that requirement for the hybrid instrument process to take place where the public health risk requires urgent action. The principal aim of Clause 123 is to protect public health. As such, the overriding concern of regulations should be public safety rather than private interests. I beg to move.

On Question, amendment agreed to.

Baroness Thornton
moved Amendment No. 146:

146: Clause 114, page 61, line 44, leave out from beginning to end of line 2 on page 62 and insert—
 “(5) A statutory rule that—
 (a) contains regulations made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 45A, and(b) is not subject to a requirement that a draft of the statutory rule be laid before, and approved by a resolution of, the Northern Ireland Assembly,is subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.(5A) The Department of Health, Social Services and Public Safety in Northern Ireland may not make a statutory rule containing (whether alone or with other provision) the first regulations under section 45A that include provision made by the Department by virtue of section 45B unless a draft of the statutory rule has been laid before, and approved by a resolution of, the Northern Ireland Assembly.”

On Question, amendment agreed to.

Clause 114, as amended, agreed to.

Clause 115 [Additional responsibilities of responsible officers: England and Wales and Northern Ireland]:

[Amendments Nos. 147 and 148 not moved.]

Clause 115 agreed to.

[Amendment No. 149 not moved.]

Baroness Thornton
I beg to move that the Committee do now adjourn for 10 minutes and that we reconvene at 5.57 pm.

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

[The Sitting was adjourned from 5.47 to 5.57 pm.]

Clause 116 [Co-operation between prescribed bodies]:

Earl Howe
moved Amendment No. 150:

150: Clause 116, page 63, line 25, leave out “may” and insert “would, if the case were proved,”

The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 151. We now come to the sensitive issue of information sharing. Clause 116 provides for regulations to be made to require NHS trusts and other bodies to provide and share information about healthcare workers in circumstances where that person,

“is likely to constitute a threat to the health and safety of patients”.

There is an issue here that I am sure all noble Lords appreciate. Sometimes there can be a situation in a hospital where a doctor or healthcare worker has been found to have put patient safety at risk through some aspect of his practice. Let us say it is a doctor. If that doctor moves to another hospital, there needs to be a way for that hospital to be aware of the adverse incident. I have little problem with that. Where I have a problem is with a system of information sharing that fails to draw the line between hard facts and soft intelligence. There is all the difference in the world between an adverse incident that has been investigated with the full knowledge of the doctor concerned and where the facts have been firmly established and unsubstantiated rumblings about something that might have happened.

It is not acceptable for unproven gossip or tittle-tattle to be treated as if it were fact and passed on as such. If a concern arises about the performance of a hospital doctor, whether from a firm allegation or simply as a product of the rumour mill, an employer should investigate to see whether there are any grounds for the concern and the doctor should be informed of what is going on so that he can comment on it. This is in the interests of the doctor as well as everyone else. Any doctor will understand how important it is for him and for his patients that concerns of this kind are properly investigated and dealt with. Then, if the concerns turn out to be unfounded, they should be removed from the doctor’s file.

What an employer should not do is to allow soft intelligence to lie on a file when that does not amount to grounds for serious concern. All that that does is create a delay in acting on the concerns as well as the potential for misunderstanding on the part of anyone reading the file about the limited value that the information has in protecting patients. It is also inherently unfair to the doctor. With modern appraisal and clinical governance systems there is no reason for that sort of thing to happen. The national clinical assessment system is in operation across the country. If an issue for any reason needs to be taken up the chain, the GMC can issue a warning or retraining order in circumstances where a doctor’s fitness to practise is not completely impaired. All those systems are designed to address concerns about professional competence in a timely and businesslike way.

The other aspect of this, as I have indicated, is the need for the doctor to be aware of any concern that may be raised about his performance. If he is not, there is huge scope for false information to be spread about and the doctor will have had no opportunity to give his side of the story or to put the record straight. On the other hand, if the concerns turn out to have substance, the doctor will have had no opportunity to improve his conduct or performance so as to prevent a similar problem from arising in future.

The difficulty that I have with this part of the Bill lies in subsection (1)(a), which refers to,

“the sharing of information which relates to the conduct or performance of any health care worker and which may show that that worker is likely to constitute a threat to the health and safety of patients”.

It is the word “may” that we need to look at. Left unqualified, it looks far too tentative and wishy-washy. The noble Baroness, Lady Finlay, has tabled an amendment that would substitute “shows” for “may show”. In other words, if I understand her intention correctly, the information would have to consist of proven fact before it could be passed on. I have considerable sympathy with that amendment.

The reason for my own less tight amendment is that there could be circumstances in which serious concern could arise about the performance of a doctor where there was no opportunity to investigate it before the doctor moved from one employer to the next. In those circumstances, it would be irresponsible for the first employer to do nothing at all about passing on the concern, even though the allegation might as yet be unproven. But in those sorts of case, the sine qua non is that the doctor himself should be informed of exactly what information has been passed on to the other employer. To be honest, I think that there is a case for marrying up the amendment proposed by the noble Baroness with my own, so that the clause would refer to,

“information which … shows, or would, if the case were proved, show that the worker is likely to constitute a threat”.

The noble Baroness may disagree with that, and I shall be interested to hear what she has to say, but she and I can certainly agree that the current wording will not do.

These are important issues. I hope that the Minister will feel able to look at them afresh. I beg to move.

Baroness Finlay of Llandaff
I would certainly like to speak to the amendment in my name but do so considering the generous invitation from the noble Earl, Lord Howe, to join it with his amendment. That might provide the solution to the problem in hand.

There are real dangers about information being passed on, based on tittle-tattle, gossip or suppositions, some of which may relate to cultural or perceptual differences between clinicians, but have no substance in how they actually affect their care of patients. For example, the fact that someone may eat their lunch on their own, join others or not join others, does not affect their clinical competence even though their colleagues might feel affronted, shunned or offended. But we are talking about clinical competence, not personal judgment, and for that reason it is very important that there is hard evidence. Indeed, when there is hard evidence to alert one to the fact that there may be a problem, it is very appropriate for it to be handed on.

Perhaps I may illustrate that with a specific example. A doctor’s handwriting may be more easily read by some than by others, but if it is not legible it has serious implications for the care of the patient because it is not only a clinical record but it hands on information to others. If the handwriting is so poor that the drug chart is difficult to read, that is another order of serious implication. A doctor challenged about his or her handwriting would be expected to take—and should be supported in taking—remedial action to relearn patterns of handwriting and the use of capital letters on drug charts and so on. Even when he or she has done that, it would be appropriate to hand on to their next employer the fact that there has been a problem. The hard evidence of copies of the entries in the case notes and on the drug chart would apply pressure for the doctor to keep up the remedial action.

However, that is quite different to saying that one does not like the way someone wrote or entered something in the notes where there is no hard evidence to back it up. This has implications for the registration. Hard evidence should be available to hand on. Unsubstantiated allegations may turn out to be defamatory and we could end up with some nasty cases being brought by doctors who fear that their reputation has been unfairly smeared by allegations without any substance. A second trust could inadvertently get caught up in such an action if it takes at face value hearsay evidence which has no substance to it.

Baroness Thornton
Before discussing the specific amendments I should point out that this measure is in the Bill because the common conclusion of recent inquiries into doctors who have harmed their patients, including the Shipman, Ayling and Kerr/Haslam inquiries, was that healthcare organisations failed, both singly and collectively, to “join up” the information that was available to them and that this led to the abuse and death of patients. The noble Earl is correct to say that this is a very sensitive issue and that it is important that we get it right.

There is always a balance to be struck between making sure proper measures are in place to protect patient safety and ensuring that doctors and other healthcare workers do not have their careers blighted by unfair or malicious accusations. We think we have got the balance right here. I hope that I will be able to persuade noble Lords of this and set out why I cannot support the amendments.

Amendment No. 150 would have the effect of only allowing information to be shared if the case was proven. That by itself would be a threat to patient safety. It would apply a more stringent test to the kind of information that might be shared than is currently in the Bill. Similarly, Amendment No. 150A would require the information to show a definite risk to patient safety in order for it to be shared.

While I understand the reasoning behind these amendments—they were adequately explained by the noble Earl and the noble Baroness—we believe they would still be too restrictive and could, in certain circumstances, prevent valuable information being shared that may reveal a threat to patient safety. For example, a set of clinical indicators for a health professional who works across a number of locations could potentially suggest there is a problem, but the interpretation of these data are not clear cut or definite. In this case, the information that the healthcare organisation has shows only that there “may” potentially be a threat to patient safety. If I accepted these amendments, the information that “may” show a threat to patient safety could not be shared. But other healthcare organisations in which this professional is working may hold similar isolated incidents of concern. Put together, they form a pattern that definitively shows that he is a threat to patient safety. That pattern could be identified and action to protect patients taken only if healthcare organisations can share information that “may”—not “does”—show a threat. I do not deny that it is a sensitive and difficult issue.

I know that we need to ensure that healthcare organisations share information appropriately, but the best way to do that is by secondary legislation and guidance detailing the tests that need to be applied and the steps that should be taken before information is shared. An expert group charged with helping to implement the White Paper is looking at this issue and will help us to develop the necessary secondary legislation and guidance.

The effect of Amendment No. 151 would be to ensure that no information could be shared unless the healthcare worker involved had been informed. As a general rule it must be right that healthcare workers are made aware of concerns whether these are shared or not, and certainly before such concerns are shared with other organisations. However, there may be exceptional cases when this is inappropriate or even impossible, for example, when there are concerns that informing the worker might hamper an investigation, possibly by enabling that worker to influence witnesses. For example, the Kerr/Haslam inquiry took the view that a letter of retraction written by a patient who had allegedly been abused by William Kerr was probably written as a result of pressure from him, or one of his supporters, after he had been informed of the accusation.

There may also be cases where the worker has already left the employment of the healthcare organisation and has not left contact details. While it may then not be possible to inform the worker, the healthcare organisation may judge that it is necessary to share the information with other organisations where that individual might work. In such circumstances, the amendment would stand in the way of action needed to protect patients. We intend instead to provide healthcare organisations with detailed guidance setting out the limited circumstances in which it would be justified to share information without informing the healthcare worker, while making clear that the general rule should be that he or she should be told before any information about them is shared. I hope that the Committee will feel that I have explained why the Bill is drafted as it is and that the noble Earl will withdraw his amendment.

Earl Howe
That was a helpful reply, which I shall have to reflect on. The example that she gave illustrates why the Bill is so worded, but it is an example of factual information giving rise to concerns. That is a different sort of case from tittle-tattle or unsubstantiated rumour and unfounded allegation. It is difficult to think of how the wording could be altered to capture one type of case rather than the other, but maybe the combined ingenuity of the noble Baroness and others between now and Report will suggest a further amendment.

I understand what she said about the need in certain circumstances not to inform the practitioner against whom an allegation has been made. This is an appropriate matter for guidance rather than the Bill, and I welcome what she said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150A and 151 not moved.]

Clause 116 agreed to.

Clause 117 agreed to.

18:15:00

Baroness Thornton
moved Amendment No. 152:

152: After Clause 117, insert the following new Clause—
 “Hearing Aid CouncilDissolution of Hearing Aid Council
 (1) The Hearing Aid Council is dissolved.
 (2) The Hearing Aid Council Act 1968 (c. 50) and the Hearing Aid Council (Extension) Act 1975 (c. 39) cease to have effect.
 (3) An order under section 162(2) may not appoint a day for the coming into force of—
 (a) subsection (1), or(b) subsection (2), so far as relating to the profession mentioned in section 60(2)(ca) of the Health Act 1999 (c. 8),unless the following conditions are met.(4) Those conditions are—
 (a) that an Order in Council under section 60 of the Health Act 1999 (regulation of health care and associated professions) has made provision by virtue of subsection (2)(ca) of that section (regulation of dispensers of hearing aids), and(b) that the day appointed under section 162(2) is not earlier than the day on which the Order in Council, so far as making such provision, comes into force.(5) The Secretary of State may by order make provision for the transfer of property, rights and liabilities of the Hearing Aid Council to any relevant regulatory body or to the Secretary of State.
 (6) For that purpose a “relevant regulatory body” is any body which under an Order in Council under section 60 of the Health Act 1999 is responsible for the regulation of the profession mentioned in subsection (2)(ca) of that section.”

On Question, amendment agreed to.

Clause 118 agreed to.

Schedule 9 [Regulation of social care workers]:

Earl Howe
moved Amendment No. 153:

153: Schedule 9, page 169, line 30, leave out “any description of social care worker” and insert “social care workers of any description”

The noble Earl said: This is a very simple drafting amendment. Paragraph 2 of Schedule 9 says:

“Regulations may make provision for the following matters (among others) …

(b) the keeping of registers of any description of social care worker”.

I think that there is a certain ambiguity there over whether the registers or the social workers are to be described, and I therefore suggest that the wording could be clarified helpfully. I beg to move.

Lord Tunnicliffe
I am advised by colleagues that this is a pretty unprecedented moment. Amendment No. 153 would make the wording of paragraph 2(b) more consistent with that in paragraph 8(3)(a), which refers to,

“keeping the register of social care workers of any description”.

The amendment does not, in the Government’s view, affect the substance of paragraph 2(b) of Schedule 9, but we recognise that the suggested drafting will make it consistent with the drafting of paragraph 8(3)(a) and with Section 56(1)(b) of the Care Standards Act 2000.

This is a sensible drafting amendment and it will help to ensure that the Bill is consistent in its terminology. I therefore accept it and the amendment will be included in the next reprint of the Bill. I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, for identifying this helpful improvement to the Bill.

Although not strictly related to the amendment, I also take the opportunity to place on the record, for the benefit of the General Social Care Council, a reassurance about the extent of the powers in Clause 118 and Schedule 9. The General Social Care Council has been concerned about whether these powers would allow the removal of its core functions, such as the function of deciding whether to grant or refuse registration. I am happy to provide reassurance that the new powers will not allow us to remove any of the council’s core functions.

Baroness Cumberlege
I support my noble friend, and perhaps I may suggest that from now on he should join the Bill team.

Earl Howe
This is extremely good news. I can only express my heartfelt gratitude to the Minister for having accepted the amendment. I think that it is an example of symmetry of drafting, of which I definitely approve.

On Question, amendment agreed to.

[Amendment No. 154 not moved.]

Baroness Thornton
moved Amendments Nos. 155 and 156:

155: Schedule 9, page 170, line 42, after “State” insert “appropriate”

156: Schedule 9, page 171, line 16, after “Ministers” insert “appropriate”

On Question, amendments agreed to.

Schedule 9, as amended, agreed to.

Clause 119 agreed to.

Clause 120 [Education and training of approved mental health professionals]:

[Amendment No. 157 not moved.]

Clause 120 agreed to.

Clause 121 agreed to.

Schedule 10 [Further amendments relating to Part 2]:

Baroness Thornton
moved Amendments Nos. 158 and 159:

158: Schedule 10, page 174, line 28, at end insert—
 “ In section 26 of the 2002 Act (powers and duties of the Council: general), in subsection (3)(a), after “officer of the body,” insert “or before the Office of the Health Professions Adjudicator,”.”

159: Schedule 10, page 175, line 33, at end insert—
 “National Assembly for Wales (Disqualification) Order 2006 (S.I. 2006/3335)In Part 1 of the Schedule to the National Assembly for Wales (Disqualification) Order 2006 (bodies of which all members are disqualified)—
 (a) for “Council for the Regulation of Health Care Professionals” substitute “Council for Healthcare Regulatory Excellence”, and(b) at the appropriate place insert—“Office of the Health Professions Adjudicator;”.”

On Question, amendments agreed to.

Schedule 10, as amended, agreed to.

Clause 122 [Interpretation of Part 2]:

[Amendment No. 160 not moved.]

Clause 122 agreed to.

Clause 123 [Public health protection]:

Earl Howe
moved Amendment No. 161:

161: Clause 123, page 68, leave out lines 15 to 17

The noble Earl said: In moving Amendment No. 161, I shall speak to Amendment No. 162 and, very briefly, to Amendment No. 166A.

Clause 123 brings us to Part 3 and to the very important provisions relating to public health. Let me say at the outset that I understand fully, and I support, the need for Parliament to bring our public health legislation up to date and at the same to time to bring it in line with international health regulations. Much of our public health law dates back to the 19th century. As such, it fails to address a number of matters which under most people's reckoning fall within the definition of public health hazards, the most obvious examples being nuclear radiation and chemical contamination. I accept that the law needs to cover these in a way that makes it possible for the relevant authorities to protect the public in an appropriate manner. I also accept the desirability of implementing the recommendations of the World Health Organisation, as reflected in the International Health Regulations of 2005. These now cover infectious diseases in general, rather than naming specific diseases as they used to, and they are also concerned with hazards relating to contamination.

What we have in Clause 123 is a series of new sections to be inserted into the Public Health (Control of Disease) Act 1984 which are designed to cover all relevant types of hazard falling under the heading of infection or contamination. While I recognise that this approach is clearly sensible if we are to cater for public health threats that are as yet unknown—and one thinks back to the threat posed by SARS a few years ago—the inevitable feature of it is that the measures in the Bill that are designed to address these disparate threats have to be couched in quite sweeping and vague terms. Under the old-fashioned variety of regulations, we were dealing with specific named infectious diseases such as plague and cholera. The severity of those threats is well understood and the measures needed to avoid their spread are well established. However, once we start dealing with threats that of their nature cannot be defined, because they are as yet unknown, we are into rather different territory. We can provide only in a general way for the measures that may possibly be needed to counter them, even though we cannot say anything substantive about them.

We are also in different territory with the threats posed by chemical and nuclear contamination because, whereas immediate quarantine is appropriate for someone suffering from plague, there is usually no necessity to quarantine a person who may have come into contact with a hazardous chemical. Rather what you do is to try to ring-fence the contamination and keep people away from it. Nuclear contamination falls somewhere between the two. If a place is contaminated, you will want to evacuate the affected area. If, on the other hand, like the unfortunate Mr Litvinenko, someone ingests a nuclear isotope, you will want to isolate that person as well as make sure that the source of the radioactivity does not pose a danger to others.

The result of legislating for this very broad range of threats is a set of all-singing, all-dancing statutory provisions which, if passed into law, will be totally reliant on clear guidance being issued if the relevant public authorities are to implement the law in a way that is both discriminating and proportionate. In new Section 45C we find exactly where this all leads to. New subsection (1) gives the appropriate Minister a power to make regulations,

“for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination”.

In new subsection (2)(b) we see that the power may be exercised,

“so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances”.

In other words, it is a very sweeping power indeed.

I say that because we are dealing here with measures which are not defined in the Bill but which Ministers can bring into force more or less at the stroke of a pen without the prior approval of a magistrate. These include, in new subsection (3)(c), a provision,

“imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health”.

In other words, Ministers, by regulation, are being given considerable power to limit and constrain the daily lives and freedoms of citizens.

Baroness Tonge
Has it occurred to the noble Earl that these powers already exist in the Civil Contingencies Act, which was updated in 2004? If he is going to address the issue, I apologise, but I feel we need to look at the two together.

Earl Howe
The noble Baroness makes an extremely important point. I was going to ask the Minister whether she could explain how these provisions tie in with those of the Civil Contingencies Act and what circumstances might be thought likely to warrant action to be taken under that Act rather than under this part of the Bill. I am grateful to the noble Baroness for making that point.

It is quite a job to navigate through these provisions because they are qualified by what is contained in new Section 45D, which is itself qualified by new Section 45G. They also need to be read in conjunction with new Sections 45E and 45F. It would be helpful if the Minister could confirm my understanding that when it comes to those measures which involve the greatest intrusion into personal freedoms—namely, making someone submit to a medical examination, ordering their removal to hospital or another establishment, or ordering their detention, isolation or quarantine—it will not be possible for regulations to bypass a court order made by a magistrate. That is my reading of new Section 45D(3).

If that is correct, I should appreciate it if the Minister could give us an illustration of the kinds of provision which regulations are likely to contain in the event of, say, a SARS outbreak, a nuclear leak or a leak of a dangerous and toxic chemical. We need to have a feel for the kinds of situations which may be covered by regulations as opposed to the kinds of situations which are thought appropriate for a magistrate to deal with. Some are covered in new Section 45C(4), but this list is expressly not exhaustive.

We are told in new Section 45F—this is the subject of Amendment No. 166A, to which my name is attached—that regulations may confer functions on local authorities and other persons. I can understand the likely role to be played by local authorities, but I am not sure I know who else is likely to be asked to play a role in public health protection. I would appreciate it if the Minister could throw some light on this. If people other than authorised local government officials are to be vested with authority to infringe people’s personal freedoms, we need to know who they are and what functions they are likely to have.

Equally, I would be glad if the Minister could explain why the provision in new Section 45C(3)(c) creates what is apparently a very low threshold for restrictions or requirements to be placed on persons, things or premises. The condition that is specified is that this must be in response to a threat to public health. That, frankly, could mean anything. The degree of threat is not specified. The only limitation on the use of the provision comes in new Section 45D, which states that the restrictional requirement imposed must be proportionate to what is sought to be achieved, but it does not say how great or how small the actual threat needs to be before measures are taken.

I have to say that I am rather uneasy about that. To interfere with personal liberties when there is only a remote threat to public health might be seen by many as an overreaction, even though a Minister could still justify the restriction by arguing that it was proportionate to the mischief in question, were it to happen. Perhaps the Minister could take us through the thinking here.

If we look ahead slightly to Amendment No. 165 in the name of the noble Baroness, Lady Stern, it seems to me that she has addressed rather neatly the point that I am making in my amendment. I beg to move.

18:30:00

Baroness Stern
I shall speak to Amendments Nos. 166 and 167 in the group. As the rest of the amendments in my name and in that of the noble Earl, Lord Onslow, relate to Part 3 and the issue of public health and compulsory powers, I crave the indulgence of the Committee to say a few words about the general issues. I am particularly grateful to the noble Earl, Lord Howe, for the way in which he has covered this matter. I feel better knowing that it was not just me who found it incredibly difficult to understand.

In Clause 123, the Government propose to modernise the law on public health. The Joint Committee on Human Rights welcomed this aim but it was concerned that, in introducing a broad degree of flexibility in the proposed health protection regulations and public health orders, the Government were asking Parliament to authorise the use of potentially broad restrictions on individuals without close scrutiny of the circumstances in which the powers would be used and how they might affect individual rights, such as the right to liberty and respect for the family, private life and freedom of association.

Most of our amendments propose a number of additional safeguards for these rights, and we ask the Minister to explain why she thinks the existing safeguards are adequate. Our amendments are principally focused on those regulation or order-making powers which impose restrictions or requirements on persons and which most affect individual rights.

One of the final series of amendments calls on the Minister to justify the need to create an emergency power to make regulations which might enable the detention, quarantine or isolation of individuals without parliamentary oversight and without the same safeguards required in the Civil Contingencies Act. I am very grateful to the noble Baroness, Lady Tonge, for raising that.

The purpose of the amendments is to ask the Minister to explain why such broad powers to deal with public health risks are necessary and proportionate. We propose further safeguards for individual liberty and to ensure proper parliamentary oversight.

Amendment No. 166 clarifies the scope of health protection regulations. It does not change the effect of the Bill but clarifies the Government’s policy intention, which is to allow health protection regulations to enable the imposition of special restrictions or requirements by the Secretary of State or other decision-makers. In its report on this part of the Bill, the Joint Committee on Human Rights concluded that the effect of these provisions was far from clear and accessible. The effect of our amendment would be to clarify that, although health protection regulations may not directly impose requirements for medical examination, removal to hospital or other places, detention, isolation or quarantine, these provisions are intended to allow health protection regulations to enable others to impose these restrictions.

Amendment No. 167 concerns the timescale of special restrictions and requirements imposed by regulations. The Joint Committee expressed concern in its report that the provisions in the Bill which allow health protection regulations to impose regulations and requirements on individuals are not subject to any specific restriction on the time a person might be affected.

The committee was particularly concerned about special restrictions and requirements, such as conditions that could otherwise be ordered by a JP, including health monitoring and requirements to provide information, attend training or advice sessions or to be subject to restrictions on contact with others. The committee accepted that the limitation that health protection regulations containing or authorising special restrictions or requirements must be in response to a serious and imminent threat to public health was a positive safeguard. However, it considered that the failure to specify that measures should end when that threat subsides significantly undermined the safeguards.

Our amendment would introduce a requirement that any regulations imposing special restrictions or requirements on individuals would lapse after six months. The amendments provide that those regulations may be renewed but must lapse when they are no longer necessary or proportionate to meet the serious or imminent threat to public health that triggered their use. The amendments also provide that, where regulations enable the imposition of medical examination, detention, isolation or quarantine, a short timetable should apply to those restrictions.

At present, although the Bill proposes that there should be a 28-day limit on the imposition of these restrictions by a JP before they must lapse and be revisited, no similar administrative restriction is required in respect of the imposition of these requirements. My amendment proposes that any restriction that includes medical examination, detention, isolation or quarantine shall remain in place for no more than 14 days. Thereafter, the restriction can be renewed only by a JP but it can be renewed for up to seven days. Following that, any restriction can be continued, subject to automatic review by a JP every seven days and subject to a maximum period to be set by the Secretary of State.

The government response to our reports did not address those issues, but I very much hope that the Minister will address them now.

Baroness Murphy
I shall speak briefly to probing Amendment No. 166A. I support the amendments of the noble Baroness, Lady Stern, and praise the exposition of the noble Earl, Lord Howe, on this group of amendments.

I have difficulty with this issue. When I read page 69, line 37 of the Bill, which mentions “other persons”, I assumed that it referred to public health personnel from the local health authority—the primary care trust—which was engaged in this. My question for the Minister is: is that right? I am familiar with the public health intervention powers and powers under the National Assistance Act, which I will talk about later. These provide a clear hierarchy of intervention powers. It is clear that the local public health department is responsible, through a medical officer of health or a proper officer, for who must make the decision and when.

I understand that we are trying to legislate for a broad range of threats but we need to have far greater clarity about how this will be translated into regulation and the practicalities of that. Given that these are rather draconian powers, they need considerable watching. We will discuss the monitoring of those powers later, because that is another aspect that concerns us. We need far greater clarity about who will do what to whom and when.

Baroness Thornton
As the noble Earl said, we now turn to Part 3. Clause 123 updates the Public Health (Control of Disease Act) 1984. It builds on local authorities’ existing powers to protect the public from significant health risks while introducing safeguards to protect the individual. For example, the existing legislation only provides a justice of the peace with the power to require an individual to be medically examined, to remove an individual to hospital or to require that he is detained in hospital. We believe that those are extreme measures, and the new legislation offers a flexible range of measures enabling the justice of the peace to seek the most appropriate measure for the case—in many cases, a much less restrictive option than the previous Act would have allowed. I apologise for the density and diversity of these clauses. I sought assurance from my officials that it was necessary for them to be written in this way, and I was assured that it was necessary in order to cover all the eventualities and safeguards.

Amendment No. 161 removes new Section 45C(2)(b), which clarifies some of the ways in which the domestic regulation-making power may be used. The scope of this power needs to be broad in order to ensure that we can take action to protect public health. However, I recognise that it can raise legitimate concerns, which is why we have set out in the delegated powers memorandum and the further detailed policy statement how we intend to use it. Those detailed explanations of our intent are available in the Library, and I have placed copies in the corner of this Room.

In addressing some of the other amendments laid against new Section 45C, I hope to be able to persuade the noble Earl and the noble Baronesses why the provision is necessary. Amendment No. 162 seeks to ensure that, when regulations are made under Section 45C(3)(c) to impose or enable the imposition of restrictions or requirements on or in relation to a person, thing or premises, it is done in response to a demonstrably significant threat to public health. I hope that noble Lords will be reassured to know that there are already safeguards in the Bill to ensure that new Section 45C is used in the right circumstances.

The Bill already ensures that all domestic health protection regulations must be in relation to an infection or contamination that poses significant harm to human health. The judgment that Amendment No. 162 asks us to make is whether the infection that can cause significant harm to a human’s health is also one that could cause a wider public health threat. That may not be possible where the threat is new and the science is not yet available to assess its significance. For example, when SARS first emerged, there was little scientific evidence about how it was transmitted. It was clear that it was a danger to humans who were infected, but it was unclear how great the risk was to the public at large. Amendment No. 162 would require the degree of risk to be known before regulations could be made, and that could disempower Ministers putting in place precautionary or contingent measures that could save lives.

I turn to Amendment No. 166. The noble Baroness, Lady Stern, suggests that the existing provisions do not make it crystal clear that, while regulations cannot impose a special restriction or requirement for medical examination, detention, isolation or quarantine, they can enable the imposition of these requirements. I sympathise with that point. When drafting the provisions, it was not the intention to hide the fact that the regulations could enable the imposition of those measures in certain circumstances. To put this issue beyond doubt, let me state for the record that the regulations are intended to allow the imposition of medical examination, detention, quarantine or isolation when a decision-maker determines that such a measure is a proportionate response to a serious and imminent threat to public health. Furthermore, let me clarify that the decision-maker, who would be specified in regulations, would be the Secretary of State or Welsh Ministers, where that would be appropriate.

Amendment No. 166A seeks to remove the power of the Secretary of State or Welsh Ministers to confer functions through the international travel and domestic regulation-making power on persons other than the local authority. I shall explain how the power, which can be found at Section 45F(2)(a) of Part 3, could be used. During an incident similar to the SARS outbreak in 2002-03, this provision would allow the Secretary of State to enable doctors to make decisions about whether a patient should be quarantined. On a more day-to-day level, the provision would enable port health authorities to carry out the function of inspecting ships and awarding ship sanitation certificates, which is a requirement under the International Health Regulations 2005. I am sure that noble Lords will see why the provision is necessary.

Amendment No. 167 seeks to restrict the length of time that regulations directly imposing any of the “special restrictions or requirements” on people, things or premises can remain in force. It would require regulations containing such measures to lapse after six months. That might, in some cases, be appropriate for a measure involving a significant impact on a person’s private life. However, new Section 45C(3) allows regulations to be made imposing from the centre a “special restriction and requirement” to, for example, a category of premises. This could be quite a routine matter, needing to remain in force for a long time—for example, requiring all premises of a particular type to be regularly disinfected in a particular way. It would not be appropriate to take up Parliament’s time in having to remake such arrangements every six months.

The second part of Amendment No. 167 would insert a new subsection (5B), which seeks to impose time restrictions of 14 days where the regulations enable the imposition of detention, quarantine or isolation by a designated decision-maker in the face of a “serious and imminent” threat. Fourteen days is half the quarantine period of some serious infectious diseases. For example, Hantavirus, a viral haemorrhagic fever spread by rodents, has an incubation period of two to four weeks and can be fatal.

As for how the legislation overlaps with the Civil Contingencies Act, the Bill will allow us to bridge the gap between voluntary compliance with public health measures and the use of more extreme civil contingency powers. The new provisions provide a set of powers specifically tailored for dealing with a significant threat to public health. They introduce specific safeguards and set out the type of provisions that might be made. Unlike the Civil Contingencies Act, regulations under the domestic regulation-making power can be made in advance of a serious and imminent situation so that they are in place as soon as it becomes necessary to invoke them. This gives organisations involved a clear understanding of what measures might be put in place when needed. The domestic regulation-making power also enables the Secretary of State to make regulations placing restrictions and requirements on individuals, things and premises before a threat becomes serious or widespread in order to prevent an emergency occurring. At the other end of the scale, these powers enable routine good housekeeping, such as systems for notifying specific cases of infection or contamination, which is quite outside the scope of the Civil Contingencies Act.

The noble Earl asked for some examples of the type of restrictions and requirements that the Secretary of State might impose and why. I have three examples. First, if a contaminated cargo was dispersed across the country, the powers would enable the Secretary of State to recall the cargo and require local authorities to track down those who had contact with the cargo and offer them medical advice. In my second example, if human-to-human transfer of avian flu became a greater likelihood, the Secretary of State might consider it a proportionate reaction to require all individuals working with poultry to wear protective clothing and undertake a decontamination regime at the end of their daily shift. This could reduce the spread of any infection to family and friends. Finally, if there was a large outbreak of SARS, the regulations could be used to empower hospitals to require all visitors to SARS patients to wear protective clothing to reduce the risk of onward spread.

18:45:00

Baroness Tonge
I want to explore and get quite clear the relationship between the Civil Contingencies Act and these new regulations. Who starts things off? At what point do the local authorities say that something is too big for them to deal with and that the Secretary of State should take over? At what stage does the Secretary of State say to local authorities that they will have to invoke the Civil Contingencies Act? I do not quite understand the connection between the two and how, in practice, they will be implemented.

Baroness Thornton
My understanding as a lay person is that the Civil Contingencies Act is there to deal with the gaps where there is no legislation to deal with civil contingencies. This Bill addresses issues of health protection. However, we will be coming to the group commencing with Amendment No. 198 that is all about the Civil Contingencies Act, and I shall have a very much fuller briefing note, which I hope will help to explain that.

Perhaps I may return to the question of “other people”, which was raised by several noble Lords. The regulations will specify the individual who can impose specific detention, isolation or quarantine. They will be scrutinised by Parliament under the affirmative procedure. Those people will mainly be doctors and health professional officials. I think that one noble Lord identified that those would be the “other people”, and that would indeed be the case.

Amendment No. 167 also requires that only a justice of the peace can renew and review a measure every seven days after the first 14 days. One purpose of Sections 45C and 45D is to provide central powers to deal with serious and imminent threats when it may be appropriate to enable a decision-maker other than a justice of the peace to take key decisions at the relevant time. The amendment would therefore undermine that purpose by reintroducing the role of a justice of the peace. The effect of that could be that, in a widespread emergency, justices of the peace could be overrun with applications that could better be determined by authorised officers applying centrally set criteria under carefully drafted regulations.

I hope that that answers the questions that have been raised and that the noble Earl will feel able to withdraw the amendment.

Earl Howe
There was one question that I do not think the noble Baroness answered, although I thank her for her reply. It concerns new Section 45D(3), which I understand says that the instances where personal freedoms are infringed the most may only be the subject of an order from a magistrate and may not be covered by regulations. That is where someone is being removed to a hospital or another place and detained, and so on. The Minister is welcome to write to me on that point if she would like to do so. Her answers were very helpful, and I am sure that all Members of the Committee will study them in some detail between now and the next stage of the Bill. I very much join the noble Baroness, Lady Stern, in the concerns that she expressed, and no doubt she is in the same camp as me on this. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 not moved.]

Baroness Stern
moved Amendment No. 163:

163: Clause 123, page 68, line 46, leave out from “unless” to “the” in line 1 on page 69

The noble Baroness said: Amendments Nos. 163 to 165 address the proportionality of health protection regulations. The Minister has already mentioned proportionality. As drafted, the Bill provides that any restrictions or requirements provided for by these regulations may be imposed only where the “appropriate Minister” considers that it is proportionate,

“to what is sought to be achieved by imposing it”.

Similarly, where the regulations enable the imposition of restrictions or requirements, the decision-maker must consider that the imposition is,

“proportionate to what is sought to be achieved by imposing it”.

The JCHR amendments would conclusively remove any subjective element from these provisions and require any restriction or requirements to be proportionate not only to the immediate aim of the policymaker imposing it but also to the risk to public health that it intends to meet. In my view, our amendments are a considerable improvement on the text which, when one reads it, seems to go round a little. I shall do what I think it is proportionate to do and I look forward to the Minister’s response. I am sure she will agree that our amendments are indeed a great improvement. I beg to move.

Baroness Finlay of Llandaff
Assessing risk is, ultimately, trying to predict an unknown. One of the difficulties when faced with some of the exotic infections—SARS has already been cited—is that it is effectively a guess in the dark because the true pathogenicity of those organisms will not emerge until some time later. I am concerned about being overly restrictive in the short term rather than taking a much more precautionary approach. I say that based on my contact with people who were involved in the SARS outbreak. I was full of admiration for the way in which the Hong Kong community managed to clamp down on its movements, including self-quarantine on the part of healthcare workers, who took a precautionary approach and voluntarily stayed on hospital premises, in isolation, before going home.

I am concerned that during the avian flu outbreak in turkeys here overalls were not being changed and cleaned by the people handling the turkeys at both ends of the transport line. There need to be powers to impose cautious behaviour because I fear that in this country we may not do as well as Hong Kong.

Baroness Thornton
New Section 45D(1) and (2) insert a safeguard into the domestic regulation-making power. That safeguard requires that where a person is imposing a restriction or requirement they must consider that the measure is proportionate to what is sought to be achieved by imposing it. Amendments Nos. 163 and 164 would remove from the provisions the fact that the person must consider it proportionate; instead, the provision would read that the measure must be proportionate. However, simply deleting the reference to the person making the judgment that the measure is proportionate does not change the fact that such a judgment has to be made by someone. Measures are not proportionate to the threat by themselves; someone must judge them to be so, as the noble Baroness, Lady Finlay, eloquently explained.

The amendment would force the person making the decision not only to consider whether he thought it was a proportionate thing to do, but also whether he thought every other person would also believe it was proportionate. How could he decide that with any certainty? For example, during the SARS outbreak in Canada, an entire hospital was closed and all the staff placed in working quarantine. People not yet infected with SARS were placed in quarantine along with people that were. Was that a proportionate measure? With hindsight, the World Health Organisation said that it was control measures such as those which stopped the SARS infection spreading. The person making the decision under new Section 45D must be reasonable and properly informed. That is the law.

Amendments Nos. 164 and 165 also seek to elaborate the factors to which the measure must be proportionate. The amendments require the measure to be proportionate not only to its own aim but also to the risk or threat that it is intended to address. There are two problems with that. First, the Minister or other decision-maker may not know the extent of the threat at the time when the decision must be made. However, because the decision may have to be made in the absence of firm evidence of the extent of the risk, it may be impossible at that time to be sure that the decision-maker has chosen proportionate risk at that time. There was a very helpful explanation from the noble Baroness, Lady Finlay, about that. Secondly, and in some ways more importantly, the measure is likely to be one step in a suite of measures aimed at removing or reducing a risk. In and of itself, the measure may not be proportionate to the magnitude of the threat. I hope that in the light of those explanations the noble Baroness, Lady Stern, will feel able to withdraw the amendment.

19:00:00

Earl Howe
Before the noble Baroness decides what to do with her amendment, I have a question. Am I not right that if someone were minded to judicially review a decision under new Section 45D(1), the test would be whether the appropriate Minister had considered that the restriction or requirement was proportionate? That test does not say that the Minister must be satisfied, which is quite a strict test; it is simply a question of whether he or she considers that the restriction or requirement is proportionate. That is a pretty easy test to pass, whereas the noble Baroness’s amendment would be a stiffer test because it would be what the reasonable man or woman might say was proportionate to what was sought to be achieved. I do not want to put words into the noble Baroness’s mouth, but it seems to me that there is a distinct difference and that it is not right to say that it does not really matter what you have here and that someone has to make the judgment. It is true that someone has to make the judgment, but the test that a court would look at might be rather different.

Baroness Stern
I am most grateful to the noble Earl, Lord Howe, for understanding so clearly what the Joint Committee on Human Rights was saying and what I was struggling to convey. The more I listen to what is said, the more convinced I am that, when this matter goes back to the Joint Committee for discussion, the committee will probably feel that it is worth coming back to the issue and pressing it a little further. However, at the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164 to 167 not moved.]

Baroness Stern
moved Amendment No. 168:

168: Clause 123, page 70, line 19, after “review” insert “by a magistrates’ court”

The noble Baroness said: This amendment addresses the question of the rights of review. The Joint Committee on Human Rights very much welcomed the right of appeal against the imposition of any special restrictions or requirements. The Bill also proposes that there will be a right of review in respect of the continuation of any special restrictions or requirements imposed as a result of the operation of health protection regulations. In our report, we expressed concern that there was very little detail in the Bill about how these rights would work in practice.

The amendment would require a periodic review by a magistrates’ court in respect of any special restriction or requirement that continued under any health protection regulations. It is a probing amendment. The Government have explained that, without knowing the specific situations that regulations may be needed to address, it is difficult to provide appropriately for those safeguards in the Bill. For example, it is likely that it would be appropriate for a periodic review to be carried out by the same authority that placed the initial restriction or requirement on the individual. However, that will vary depending on the situation.

In the view of the Joint Committee on Human Rights, many details relating to the operation of the review and appeals process are left to be determined by secondary legislation. Therefore, I am taking the opportunity provided by this amendment to ask the Minister how the Government envisage that this review process will operate in practice. Can she tell us, for example, whether the process will generally be independent of the procedures for appeal? Can she confirm that individuals subject to a special restriction or requirement will have an appeal directly against decisions made under health protection regulations and will not have to wait for the outcome of any periodic review? Would an individual or his or her representatives be invited to make representations to the review? Will there be a further appeal against the outcome of a periodic review? I hope that the Minister can provide some answers to these questions. Also in this group are Amendments Nos. 186, 187, 189 and 190, and I shall refer to Amendment No. 195, although it is in a later grouping. These amendments concern the duration of public health orders. They are also probing amendments to open up a debate on the proposals on the duration of public health orders made by JPs. Amendment No. 186 will reduce the current proposed maximum period for detention, isolation and quarantine from 28 days to 14 days. At present, there is no maximum period for any order relating to other restrictions or requirements, including requirements which may prevent an individual seeing other people or working or which may require an individual to attend training or that his health be monitored. The Bill provides for no maximum period for these orders, but leaves that to the discretion of the relevant Minister who may set a maximum. Can the Minister explain why that is appropriate? Amendment No. 187 provides that any public health order imposing a restriction or requirement may not last longer than 28 days. A further order may extend that.

The Bill provides that the relevant Minister may set the maximum period for which a JP may renew or extend any order imposing restrictions or requirements. Amendments Nos. 188 and 190, suggested by the Joint Committee, would remove the power to set maximum periods for renewal of orders for detention, isolation and quarantine from the relevant Minister. That Minister would retain the power to set the maximum periods for renewal for restrictions and requirements. Amendment No. 190 would require any public health order involving detention, isolation or quarantine to be reviewed by a JP every seven days after the expiry of the initial period of the order. Amendment No. 195 would require any regulations setting maximum periods for public health orders or extensions to them to be subject to affirmative resolution.

These amendments spring from the Joint Committee’s concern that, as drafted, the Bill could potentially subject individuals to detention on the basis of 28-day orders that could continually be extended or renewed by JPs. Can the Minister explain how the Government envisage that these orders will operate in practice and their likely duration in particular cases? Could she give examples where detention, isolation or quarantine will be necessary for longer than 28 days? Although the relevant Minister is empowered to set a maximum period for detention, isolation or quarantine, or for the imposition of other restrictions or requirements, the Minister is not required to do so.

The Joint Committee’s concerns relate to the following questions. Why is a 28-day initial period appropriate for orders permitting detention, isolation and quarantine? Why is it appropriate to leave the maximum period for all other restrictions and requirements to administrative discretion? Why is it appropriate to leave the maximum period that a person may spend in detention, isolation or quarantine to administrative discretion, subject to the oversight of a JP? I hope that the Minister can provide some reassurance on all those points. I beg to move.

Earl Howe
I support the amendments that were so ably spoken to by the noble Baroness, Lady Stern. My comments will closely reflect her concerns. My Amendments Nos. 184, 185, 188 and 191 in the group also concern orders made by magistrates. New Section 45L proposes that when a magistrate makes an order for a person to be detained in hospital or another suitable establishment, or to be kept in isolation or quarantine, the period for which the person can be kept locked up can be as long as 28 days.

Under new subsection (2), that period may be extended by further order of a JP for a period to be determined in regulations. I share the noble Baroness’s concern; this is not satisfactory, as 28 days is a long time during which to detain someone who has done nothing wrong and who does not need treatment for a mental illness under the Mental Health Act. Of course, I understand that the incubation period for certain diseases may be three or four weeks. However, I believe we owe it to anyone whose detention is thought necessary only in order to protect the general population to review the initial detention order at much shorter intervals than 28 days. The amendment proposes every seven days—it could be every 14 days—but the intention here is that the order could be renewed for as long as may be justified by the evidence of risk.

What I am unclear about—and perhaps the Minister could tell us—is whether the extension referred to in new Section 45L(2) is a once-only extension or an extension which may itself be extended once the specified period elapses. The wording is by no means clear here, though the Explanatory Notes suggest that the extensions can if necessary continue indefinitely. I do not have a particular problem with that idea, but I think that the court should have to review the order at frequent intervals. I am not aware of what maximum period the Government are going to specify for any extension of a Part 2A order, and that leaves me feeling very apprehensive. Even if the Minister were to get up and say that the Government intended to make the period seven days, I would be apprehensive, because that period could be changed by any future set of Ministers in a new set of regulations. However, I fear that the maximum extension allowed will be longer than this. I see no reason why that maximum period should not be specified on the face of the Bill, as opposed to secondary legislation. In fact I think it would be infinitely preferable.

Finally, Amendment No. 191 would provide that where an application was made to vary or revoke a Part 2A order, the relevant hearing should take place promptly. If, for example, someone is quarantined under a Part 2A order on the grounds that they are suspected of having viral haemorrhagic fever, and it then turns out that they do not, and that they are not a danger to others at all, it is unacceptable for the person to be kept in continued isolation for more than the shortest possible time. I hope that the Minister will consider this proposal very carefully, as it is not unknown for appeals to a magistrate to be deferred and delayed. A delay may not matter for some kinds of appeal, but when someone's liberty has been taken away through no fault of their own, it matters very much.

Baroness Finlay of Llandaff
I add my support to the principle behind this group of amendments. While I can see that you need to be able to act very quickly with a precautionary approach when somebody’s liberty has been removed, I have a concern that they might languish and almost be forgotten about in the system, particularly if there are a lot of other people involved. If it is just one patient, a review is much more likely; but if several hundred people were being held in quarantine, I can see how some poor person might get missed out in the system if there was no forced review time. That is simply because of the human nature of pressures on staff.

19:15:00

Baroness Thornton
New Section 45L(3) of Clause 123 sets the maximum time for which a justice of the peace can order initial detention, isolation or quarantine of an individual. The maximum period is 28 days.

Amendments Nos. 185 and 186 seek to reduce that period to seven days and 14 days respectively, and Amendments Nos. 190 and 184 seek to reduce any further extension of the period to intervals of seven days. I understand the need to ensure that these powers are not wider than necessary, but 28 days was not an arbitrary choice. It was chosen because it covers the maximum incubation period for most known diseases that are highly transmissible. Lassa fever has an incubation period of up to 21 days and is highly contagious as soon as symptoms appear. Therefore, if the maximum initial period was less than 22 days an individual might not be showing symptoms at the point when the order ran out. A 28-day maximum allows for symptoms to show and supportive treatment to begin, at which point an individual may decide to co-operate voluntarily, thereby removing the need to seek an extension to the order. A period of seven or 14 days would not cover the incubation period of some diseases.

Twenty-eight days is the maximum period available for detention, isolation or quarantine orders. That does not mean that a justice of the peace is obliged to order that an individual be detained for that period. The justice of the peace, by virtue of new Section 45G, may make an order only if he believes that it is necessary to do so in order to remove or reduce the risk to others. Therefore, if the incubation period for a particular disease was known to be only a few days, it would not be necessary to make an order extending for 28 days. This system gives the justice of the peace the flexibility to make a decision on a case-by-case basis and to set the period most effective for removing or reducing the risk while ensuring rigorous attention to the necessity and proportionality of the measures taken. I understand noble Lords’ concerns, and one thing I can look at again is whether we should ensure that extensions to orders allowing detention, isolation and quarantine should also be restricted to periods no longer than 28 days.

Amendments Nos. 187 and 188 aim to restrict the period of an order for less intrusive measures to 28 days. That is not practical. For example, if an individual who works with food is found to be infected with typhoid or E.coli, an order can be made requiring him to stay off work. The length of the order will normally be related to the length of time it takes, following treatment, to produce two clear stool samples. Samples will be checked regularly. However, producing two clear samples may take longer than 28 days. It would be unnecessary, if the individual is still found to be infectious, to require a review by a justice of the peace at 28 days.

Amendment No. 191 seeks to ensure that where an application is made to vary or revoke an order made by a justice of the peace under new Sections 45G, 45H or 45I, the application is heard within two working days of it being made. I sympathise with this amendment. It is right that a hearing should be speedy, especially where the order will involve the detention or isolation of an individual. However, Amendment No. 191 is very rigid. It would require a hearing to take place even where it would not be sensible to do so within the given timeframe. For example, if an individual has been quarantined under an order from a justice of the peace and doctors are carrying out tests to determine whether the individual is suffering from a particular disease, it would not be sensible to require a hearing before the test results had been obtained, which might take longer than two working days. Requiring the hearing to take place regardless of whether the relevant evidence is available would be a waste of everybody’s time and valuable resources.

Amendment No. 168 seeks to ensure that where a review of an ongoing special restriction or requirement is necessary, it can be conducted only by a magistrates’ court. We do not specify in the legislation who should carry out the review. The appropriate individual to carry out the review will vary depending on the situation. It will not always be appropriate or necessary for regulations to require the involvement of a justice of the peace. For example, the Secretary of State could make a requirement that, following incidents involving a particular contaminant, property involved should be closed until repeat disinfection measures can be carried out. The best individual to carry out a review of whether the premises had been successfully disinfected to a standard that no longer posed a public health risk would most likely be a scientist who could take a sample and test it. If the sample was clear, the restrictions on the premises could be lifted. There would be no need to involve the magistrates.

The noble Earl, Lord Howe, raised the issue of risk. We will discuss with the Justices’ Clerks’ Society and magistrates how best to ensure prompt appeals. The noble Baroness, Lady Stern, raised the issue of how the review process will work in regulations and whether there will be an independent appeal process. The review process will always be independent because the appeal is always made to a magistrates’ court. New Section 45L extensions are repeat extensions, but we will be putting time limits on each renewal.

Amendment No.195, to which the noble Baroness, Lady Stern, referred, would require that regulations regarding the length of an order or an extension of it followed the affirmative process. The Delegated Powers Committee did not recommend that these regulations were made using the affirmative process. The Government have accepted the recommendations of the Delegated Powers Committee in full, but I can look again at whether a compromise can be found, whereby new Section 45L(4) is brought into line with the recommendation from the DPC regarding new Section 45N, which is that the first version of the regulations would follow the affirmative procedure. I hope that in the light of the reasons I have given on why the Bill is drafted is this way, and the promises I have made to look at certain parts of it, the noble Baroness will withdraw the amendment.

Baroness Stern
I am grateful to the Minister for her helpful answer and for agreeing to take away matters and look at them again. The JCHR thinks that this is a very important area because it is about people’s liberty and no doubt there will be further discussions. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe
moved Amendment No. 169:

169: Clause 123, page 70, line 28, at end insert—
 “(ba) the infection or contamination is of a kind which may be transmitted from person to person through casual contact with a person, a thing or premises,”

The noble Earl said: I admit immediately that Amendment No. 169 is not anywhere near as perfect as it should be. It has been prompted by concerns raised by the National AIDS Trust. I shall speak also to Amendments Nos. 182 and 192.

One of the consequences of adopting an all-hazards approach to public health legislation is that the language used in the drafting inevitably has to be all-purpose, the result of which is that it sweeps up absolutely everything in its path. In some instances that is not appropriate. The National AIDS Trust has pointed out—and I agree with it—that it would be quite wrong for this legislation to be applied, as it seems that it could be, to individuals who are suffering from an HIV infection.

The powers that are laid out in this part of the Bill are of greatest relevance in relation to serious contagious diseases that are spread by casual everyday contact. SARS and avian flu, as well as potentially deadly conditions such as viral haemorrhagic fever, need to be contained and dealt with in a manner appropriate to the risk that they pose to the general population. The powers necessary to deal with a real health emergency of that kind need to be flexible and extensive.

It is not, however, apparent that such powers should be applied to infections such as HIV, which are not transmissible through everyday or casual contact. The causal chain for transmitting HIV includes steps that require conscious human decisions and actions by both parties, on top of which the risk of transmission from a single exposure is extremely low. To this must be added the issue of stigma. The history of HIV and its spread across the world shows that the mistakes made by Governments have resulted either from inaction or tackling the threat in the wrong way.

This part of the Bill provides significant coercive powers that could in theory be applied to an HIV sufferer. Coercion has never been effective in dealing with the spread of HIV. Once you start coercing people, or threatening coercion, you immediately feed the fear and stigma that make HIV so difficult to address and you do not achieve what is most needed, which is people coming forward of their own accord to be treated while there is still time. I hope that the Minister can provide some reassurance to the Committee on this dimension of the provisions.

Amendment No. 192 has also arisen from a concern of the National AIDS Trust but I have taken a slightly different route from the one it suggested to me. The course which it was keen for us to consider was the one proposed by the noble Baroness, Lady Barker, in Amendment No. 175. The issue here is the need for a mechanism whereby Part 2A orders are reported as a matter of course to a central body. That is appropriate not only in order for there to be national surveillance and advice in the event of an emergency, but also as a safeguard against wrongful use of the powers of removal and detention that are vested in JPs. There needs to be transparency in the way that these powers are actually being used to make sure that they are being applied proportionately and to good effect.

Perhaps rashly, I have been rather more prescriptive than the noble Baroness by suggesting that only one central body is appropriate for this purpose—that is, the Health Protection Agency. I have also suggested that a local authority should have a duty to report to the HPA as soon as it makes the application for an order and not simply when an order is granted. As the noble Baroness, Lady Barker, is not in her place, I am sure that the noble Baroness, Lady Tonge, will be able to expand on this theme more capably than I, but it is something the Government should consider closely.

Turning finally, and very briefly, to Amendment No. 182, I draw the Committee’s attention to the wording in proposed new Section 45K(2). It states:

“A Part 2A order may include, in addition to the restrictions or requirements mentioned in the provision under which it is made, such other restrictions or requirements as the justice considers necessary for the purpose of reducing or removing the risk in question”.

I ask very simply what this could mean. On the face of things, the provision is extremely sweeping and it is not surprising that, again, the National AIDS Trust has expressed concern about it. One could envisage a situation where a magistrate has ordered a person’s removal and detention, as well as the whole panoply of measures listed in new Section 45G(2).

On top of all this, the magistrate is entitled to do anything else at all if he considers it necessary for the purpose of reducing or removing the risk in question. Can the Minister say whether this might include requiring the person to undergo medical treatment? We see in new Section 45E that regulations may not include such a provision but there is no corresponding limitation on the power of a magistrate. It would be helpful to hear from the Minister whether she is satisfied that this part of the clause, all encompassing as it seems to be, is fully consistent with the European Convention on Human Rights and with WHO guidelines. I beg to move.

Baroness Stern
I would like briefly to speak to Amendments Nos. 173 and 174. Amendment No. 173 concerns the proportionality of detention under public health orders. The Bill proposes that JPs may only make such orders as are necessary in order to remove or reduce a risk of infection or contamination. This will involve the application of a proportionality test. Our Amendment No. 173 will prevent a JP making an order involving detention, isolation or quarantine unless he or she is satisfied that no other restrictions or requirements would be capable of reducing or removing the risk posed to public health. This makes it clear beyond doubt that in order to be proportionate, and therefore necessary, measures which involve detention, isolation or quarantine may be imposed only when all other measures are considered inadequate to meet the risk to public health.

In the current provisions of the Public Health Act, the statutory language indicates that other steps must be considered before detention of an individual is considered appropriate. This reflects the approach of the European Court of Human Rights to detention for the purpose of preventing the spread of disease.

The Joint Committee expressed its concern in its report that at present there is no similar direction in the Bill. The Government explained in their response to the JCHR that they had,

“sympathy with the principle behind this proposal”,

but had some concern about the term “last resort”, which was used in the committee’s report.

The Minster explained that the Government were concerned that unnecessary delay might occur in certain cases if the possibility of detention, isolation and quarantine were limited to the last resort and that a necessity test was more appropriate. We welcome the Government’s acceptance of the principle behind the JCHR’s conclusion. Our proposed amendment does not refer to the last resort and we therefore hope that the Government will find it acceptable.

Amendment No. 174 covers the need for objective medical evidence. The Bill provides for the relevant Minister—either the Secretary of State or the Welsh Assembly Minister in Wales—to make regulations in relation to the evidence which a JP must consider before making a public health order. The amendment requires that those regulations include a requirement for objective medical evidence.

In its report, the JCHR noted that provision of medical evidence before a compulsory medical examination is required by the existing provisions of the Public Health (Control of Disease) Act 1984, and the case law of the European Court of Human Rights supports the conclusion that detention for the purposes of preventing the spread of infectious diseases or other risks to public safety must be based on objective medical evidence where the source of that risk is related to the health of the person being detained. Can the Minister confirm that objective medical evidence will be required before a JP will be able to make a public health order?

If the Government do not consider that this evidence will be necessary or appropriate, can the Minister explain why? If the Government accept the need for it, I hope the amendment will be acceptable to the noble Baroness.

19:30:00

Baroness Gould of Potternewton
I shall speak to Amendment No. 175, which should have had my name attached to it but, for some reason or other, the Bill team failed to add it. I do so because the amendment reflects the concerns I raised at Second Reading. I am grateful to the noble Earl for his introduction to this group of amendments because he has expressed many of the points I wished to raise. The noble Earl’s Amendment No. 192 is slightly different from Amendment No. 175 but, nevertheless, has the same principles behind it. Therefore it is very important.

My concern is particularly related to HIV. I have now come to accept that we are not going to get HIV taken out of the restrictions under the Bill. I hope that we might still be able to argue the case but, nevertheless, I am beginning to believe that that may not happen.

At Second Reading, I highlighted my concern about the absence of any reporting and monitoring mechanisms of the use of these orders, which may have significant implications for civil liberties, particularly given our obligations under the Human Rights Act. We have heard a great deal about that in previous amendments and, although I have not intervened, I support most of the amendments under this section.

My noble friend the Minister indicated earlier that the Bill will extend the powers available to a JP in relation to a risk of infection or disease. Previously a JP could make an order for a medical examination, to move someone with a notifiable disease to hospital or for detention in hospital. Under the new Bill, that list is much more extensive. I heard the Minister say that it had been devised to ultimately make the powers more flexible. I would like a little more explanation as to how that would work.

I shall not list all the duties that now fall to a JP, but I shall refer to two. For instance, a requirement to answer questions, restrict movement or quarantine may on occasions be necessary as a last resort to control a dangerous and contagious disease. However, there is also a potential for misuse against a stigmatised condition or a group of people who may be particularly vulnerable, such as people with HIV. I am also concerned that people who have HIV, once they are aware of the restrictions under the Bill, may refuse to go for testing because they are scared of the consequences. Very often they will fear something which they should not fear, which is particularly important. It is also terribly important to appreciate that there is continuing misunderstanding about how HIV is transmitted. In the UK, it mainly affects already socially marginalised groups.

Given the extension of these powers, it is vital to ensure that the use of the powers is monitored. The actual process of monitoring should be extremely simple. I, too, look to the HPA, which has existing procedures in place that could be adapted for this purpose. Will they be extended to cover this Bill? Given the potential implication of these orders for people’s civil liberties, it is absolutely essential that that is the case.

I stress the point about having some form of statutory provision because with a purely administrative process there is a danger that even with the best instructions and good will the process will be forgotten, particularly over time and as staff move on. The fact that the orders are used very infrequently makes it even more likely that administration processes will fall by the wayside. That could be avoided by a statutory monitoring process, as the system would be enshrined in law or be guaranteed in regulation. However, my concerns go further than that. They also relate to the needs of the individual who is subject to a public health order. Who will provide the information and advocacy for such individuals?

Clearly the use of the orders is extremely rare, as most people living with a contagious disease are willing to comply with suggested treatments and public health measures without need of an order. I made a point earlier about the problem of people with HIV. Prosecutions for transmission of HIV have prevented people going for testing. The CPS has now reviewed those regulations to assist that position.

One problem that worries me very much is that an individual, a vulnerable person—for example, an asylum seeker who does not speak English and is, perhaps, co-infected with TB and HIV and living in the UK without any family—could be subjected to an order and may not have access to the support that he requires to help him appeal the order. I appreciate the amendment tabled by the noble Baroness, Lady Murphy, which relates to a similar concern.

Will the Government consider the amendment carefully and look again at the need to include within the Bill measures or to give guarantees of a provision in regulation to ensure that vulnerable individuals who are subject to an order are aware of their rights, particularly their right to appeal, and have access to support to help them through that process? There is a need for the Government to consider again the importance of safeguarding the rights of vulnerable people who find themselves subject to a Part 2A order, both through measures to protect the individual and through a national statutory monitoring system to ensure that there is a reliable and sustainable mechanism to monitor the use of these extended powers.

Baroness Tonge
I shall speak to Amendment No. 175 which is tabled in my name and the names of my noble friend Lady Barker and the noble Baroness, Lady Gould. I shall not take up very much of the Committee’s time because it has all been said, but I make a plea that we look again at new Section 45C(3)(c), which talks about,

“a threat to public health”.

The noble Earl, Lord Howe, pointed out that that is a very broad statement. We should then look at new Section 45G, which, as we have heard from the noble Baroness, Lady Stern, and others, allows not only a person to be ordered to have a medical examination or to be removed to hospital but all the other things in the section, which I shall not read out. It is a very draconian curtailment of his civil liberties, because he is deemed to be a threat to public health.

You could have a ruthless JP or local authority—I do not suggest for one moment that they exist in this country at the moment, but there could be such an Administration in the future—which would say that a sex worker with HIV was a threat to public health. You could have an equally ruthless person saying that any gay person infected with HIV was a threat to public health, because it is such a broad term. Therefore, it is conceivable that under that Administration—we have had Governments like that in Europe and it is not beyond the bounds of possibility that it could happen again—those people would be subject to an order, rounded up, put in safekeeping and deprived of their liberty when, in the general sense, they are not a threat to public health. It could be interpreted in that way because of the looseness of that phrase. I urge the Minister to look at those two new sections to make sure that the Government are entirely happy that they will not be misused in future. That is why we want to see some central monitoring. There is no monitoring of these orders at the moment, and it is important that there should be. The Health Protection Agency is the ideal body to do it. We need to keep a close watch on this because of the “just in case” scenario. It could happen, even in the UK. We must protect our civil liberties.

Baroness Murphy
I am sorry to be keeping people from their dinners, but I want to make a few points about this group and shall speak to Amendment No. 183, which is tabled in my name. It addresses the issue that the noble Baroness, Lady Gould, has already raised: the need for independent advocacy for these individuals. I am not wedded to my amendment, which I lifted lock, stock and barrel from the Mental Health Act 2007. It was a highly convenient to lift it out and transpose it.

I want us to think about who these people are and why they are so rare. Normally someone gets carted away by the police and the courts under the criminal justice system or under mental health legislation. Tens of thousands of people are carted away every year. Everybody who works in those two systems has intense training in recognising individuals’ rights and ensuring that they receive information. There is a system of appeals that is brought to their attention, and there are advocates on their behalf who ensure that they know how to use the system to their best interests. However, there are provisions where that is not the case. Many people will know that Section 47 of the National Assistance Act 1948, which was put in place following catastrophes in 1925, and the shorter emergency version in the National Assistance (Amendment) Act of 1951 are still on the statute book. They are about carting away dirty old people who do not fit conveniently into mental health legislation. They are rather vague statutes, and they are used about 200 times a year. A medical officer of health has to apply to a JP in the same way, and those people are removed to a hospital and detained. As a research project, my colleague Paul Wolfson and I interviewed 200 individuals who had been removed under Section 47. None of them had appealed. I think that one was enabled to appeal after our interview but mostly they did not appeal because no one told them how to do it. These were very sick and frail old people, and half of them died following their removal. Seventy per cent of them could have been removed under the mental health legislation if someone had thought to use it appropriately.

As the noble Baroness, Lady Gould, has said, it could well be the case that individuals who do not speak English and who arrive with a very peculiar disease, such as SARS, will be subject to these orders, and it seems to me that they will be in the same boat as people taken away under Section 47. We must have some way of ensuring that they know how to appeal and make certain that someone is responsible for ensuring that they know their rights.

No data are collected centrally about Section 47. Questions were raised in 2000 in a letter from the Department of Health about the difficulties that Section 47 of the National Assistance Act posed in relation to the Human Rights Act. A discussion was got going but it did not seem to continue. The letter from the Department of Health was circulated. It expressed anxiety about the likely incompatibility of some of the provisions with the Human Rights Act. It said that it was difficult to judge how far any incompatibility of Section 47 and the Human Rights Act went and pointed out the practical difficulties for authorities that did not have any information available.

The reality is that people who are carted away under Part 2A orders will be in exactly the same boat. It is crucial that we understand that it is not just for local authorities to collect the data; we must have data that can be used to review why these things are happening, and those data must be collected centrally by some authority. I, for one, think that the health protection authority was the right organisation to do that. I also express support for the notion that the individuals should have someone independent—I am not wedded to the idea of the local authority doing it—who can assist them in exercising their right to an appeal.

19:45:00

Baroness Thornton
Under the provisions of Clause 123, a justice of the peace must be satisfied that four criteria are met before he can make an order. These are that the individual is or may be infected or contaminated; the infection or contamination is one which presents or could present significant harm to human health; there is a risk that the individual might infect or contaminate others; and it is necessary to make the order to remove or reduce that risk.

Amendment No. 169 seeks to add a further criterion—that the infection or contamination must be one that can only be passed from person to person, or thing or premises to person, by casual contact.

Risk does not only exist when a disease is highly transmissible by casual contact. Tuberculosis is highly infectious but it would be rare for an individual to catch it from one instance of casual contact with an infected person. Those most at risk from an infected tuberculosis sufferer tend to be their close family and friends, because they have prolonged or regular contact with the infected person, rather than casual contact.

I understand that the intention behind the amendment is to ensure that the powers are not used against individuals with HIV or AIDS, and I absolutely recognise that as a valid concern. However, we believe that the existing provisions afford the safeguards sought in the amendment. In order for a justice of the peace to make an order, he must consider it necessary to make an order to remove or reduce the risk. I am happy to put on record in this Committee that having HIV or AIDS would not in itself be enough to justify a Part 2A order.

That brings me to Amendments Nos. 175 and 192, which seek a statutory requirement for a central reporting mechanism for orders made by justices of the peace. We have considered the issue of monitoring which was raised in another place—and, indeed, has been raised by several noble Lords and the National AIDS Trust—and we agree with what has been said. The Department of Health has already agreed with the Health Protection Agency that it will set up a monitoring system within its standard operating procedures. However, to reassure the Committee, I will endeavour to find a way to make it explicit that a local authority must report the making of an order to the HPA in line with its existing duty to co-operate with the HPA as set out in Section 5 of the Health Protection Agency Act 2004.

Amendment No. 183 would require local authorities to take reasonable steps to provide an individual subject to a Part 2A order with access to an independent advocate. This issue was raised by several noble Lords. Evidence from the Health Protection Agency regarding the use of Justice of the Peace orders under the existing legislation shows that they are most commonly used for individuals who have tuberculosis. Many have no fixed abode and it is because of their erratic lifestyle that they have been unable to follow a course of treatment which can take six months. However, such individuals are usually closely engaged with social workers, counsellors, housing officers and other relevant services which are already trying to help them.

In addition, the whole point of placing orders in the hands of a Justice of the Peace is to put real weight behind the protection of the individual. Magistrates’ courts are bound by a duty to ensure that vulnerable individuals receive a fair hearing. As public bodies, they are also required to uphold the Human Rights Act. Our legislation ensures that, on top of this, there are rights of appeal to both magistrates and to a Crown Court. That said, I sympathise with the concerns that noble Lords have expressed today. I therefore commit to look again at how the regulation-making power in new Section 45M(5)(e) could be used to add to the list of affected persons, or persons nominated to act on their behalf, who can apply to vary or revoke an order. This would give an individual subject to an order an additional way of seeking assistance if they are unable, for any reason, to use their own right to apply for a variation or revocation, or their right to appeal to a Crown Court under Section 67 of the existing Act.

However, I also recognise that there is a concern, as outlined eloquently by my noble friend Baroness Gould, that a person subject to an order may be newly arrived in this country and friendless and may therefore not know anyone to whom to turn for assistance if they feel the order is inappropriate or if they do not understand it. Therefore I will look at how we can best address an individual’s needs and ensure that they have appropriate assistance or representation to protect their interests.

Amendment No. 173 seeks to ensure that detention, isolation or quarantine can be imposed only as a measure of last resort. We agree that detention, isolation and quarantine are serious measures and should be used only when absolutely necessary. However, in choosing what measure to include in an order the justice of the peace needs to consider the severity and urgency of the risk to public health and the effectiveness of any measure proposed. For example, isolation may not be the only measure a justice of the peace can order which reduces the risk of an individual spreading a disease, but it may be the only measure which would remove the risk entirely. Another measure may reduce the risk but could leave people exposed to significant danger.

Amendment No. 174 seeks to require that evidence presented to a justice of the peace includes objective medical evidence. Once again, I can understand the logic behind the amendment but I cannot support it. The reason for this is that the meaning of the term “objective medical evidence” is vague and could lead to legal challenge. In addition, the issue that dictates whether an order is necessary may not always be a medical one; it may be a lifestyle issue, as I have already outlined, and a social worker or counsellor may be better placed than a doctor to explain that an individual’s erratic lifestyle, for example, is the reason why they cannot comply voluntarily with the six months’ course of treatment unless they are required to stay in one place for six months.

It is our intention that the Bill should not allow anyone to have forced medical treatment. If this is not clear, we will bring something back on Report to clarify this and write to noble Lords to confirm that position. We have taken a provision to enable details of the evidence required to be set out in secondary legislation. We will carry out a full 12-week consultation on the regulations, which will also receive parliamentary scrutiny through an affirmative resolution procedure.

Amendment No. 182 would remove the power of a justice of the peace to place restrictions or requirements—other than those listed in the Bill—in an order that they also consider necessary for the purpose of removing or reducing risk. Section 45K will, in some circumstances, be an essential tool needed to give effect to the measures that may be imposed. For example, an individual may suffer from multidrug resistant tuberculosis and have a tendency to drink to excess. That drinking may be a known cause of the individual’s lack of co-operation with treatment. So, as well as placing a requirement on the individual to attend regularly hospital for directly observed therapy, the magistrate may believe it necessary to add to the order a requirement that the individual should refrain from drinking for the duration of the treatment. This would be a sensible additional measure which would reduce or remove the risk of him infecting others.

However, I hope that I can reassure the Committee by explaining that the criteria that must be satisfied for a justice to impose an order must also be met for supplementary measures. Therefore, it must be necessary—not just desirable—for such a measure to be included. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Earl Howe
This has been a good and interesting debate and I thank the Minister for her comprehensive reply, which in many respects was very cheering. I particularly welcome her statement on HIV and very much welcomed her undertaking on the role of the Health Protection Agency in monitoring the use of these orders. It was helpful that she picked up on the concern about friendless people and the provision of advocacy for them, and that she will take away and consider the possibility that the definition of an affected person could be tailored to include someone who could act as an advocate in those circumstances. I was also glad to hear her say that any lack of clarity about a prohibition on forced medical treatment might be addressed by means of a clarifying amendment.

I am sure that all Members of the Committee will study the Minister’s reply with considerable interest. I thank her once again for the care that she has taken to address the concerns. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe
moved Amendment No. 170:

170: Clause 123, page 70, line 29, after “a” insert “significant”

The noble Earl said: I will speak also to Amendments Nos. 173A, 176, 178, 179 and 181.

When a magistrate receives an application for a Part 2A order, there is a checklist of conditions that must be satisfied before an order may legally be granted. The checklist is similar whether the application relates to a person, a thing or a set of premises. In the case of a person, the JP has to be satisfied that he or she,

“is or may be infected or contaminated ... the infection or contamination is one which presents or could present significant harm to human health ... there is a risk that P might infect or contaminate others ... it is necessary to make the order in order to remove or reduce that risk”.

The checklist does not include any threshold of risk. The degree of risk, or the size of the threat to public health presented by a given set of circumstances, can of course vary enormously. It can be anything from a remote risk and a distant threat to a high risk and a serious and imminent threat. But the clause leaves the whole issue completely open.

Under new Sections 45C(6) and 45D(4) special restrictions or requirements can be imposed in one of two ways: they can either be imposed by a magistrate or, in certain circumstances, by means of regulations where there is a serious and imminent threat to public health. The inference to be drawn from this is that an application to a magistrate for a Part 2A order could in theory be made in circumstances where the threat to public health is a good deal lower than serious and imminent.

One could have an overcautious local authority applying to take quite draconian action in the face of a risk that by most people’s standards was remote. That may sound unlikely, but the drafting of the clause at present seems to offer no barrier to the granting of an order in such circumstances.

It is true that the magistrate has to be satisfied that it is necessary to make the order to remove or reduce the risk, but a local authority might argue that an order, and only an order, would achieve the objective of reducing the risk. There is no proportionality test here—the noble Baroness, Lady Stern, made that point earlier. That is different from proposed new Section 45D(1), which stipulates that public health regulations may be made only if the,

“Minister considers …that the restriction or requirement is proportionate to what is sought to be achieved”.

An order by a magistrate could in theory be imposed even if it was wholly disproportionate to the end result or to the degree of risk apparent at the time of the application. The amendments, therefore, seek to strike a note of realism into the provisions by saying that the degree of risk of infection or contamination must in all cases be significant before an order may be granted. I hope that the Minister will give this proposal some serious consideration. I beg to move.

Baroness Thornton
I understand that the intention behind these amendments is to ensure that where there is an insignificant risk of transmission an order cannot be made. I agree that that is an important principle. I hope that I can reassure the noble Earl that the Bill already does that.

As noble Lords know, under the provisions proposed in the Bill, a justice of the peace must be satisfied that the four criteria have been fulfilled before he can make an order under proposed new Sections 45G, 45H or 45I. The criteria are as I outlined in my previous answer: an individual is or may be infected or contaminated; the infection or contamination is one which presents or could present significant harm to human health; there is a risk that the individual might infect or contaminate others; and it is necessary to make the order to remove and reduce that risk.

If the risk of infecting or contaminating others was not significant the order would not be necessary, thus failing the fourth criteria. The significance of the risk in the third criterion is implicit—it is there already. I hope that the noble Earl will accept that we have addressed this issue and on that basis feels able to withdraw his amendment.

Earl Howe
I am going to have to think very carefully about that one—that the significance of the risk is implicit in the drafting. I could not see that it was. If the noble Baroness tells me that it is, then I must take that seriously. I shall go and look at it even more carefully. In view of the hour it is appropriate for me now simply to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Thornton
It may be a convenient moment for the Committee to adjourn until tomorrow at 12 noon.

The Committee adjourned at 8.03 pm.