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Health and Social Care Bill

This group includes Government amendments as well as those tabled by my hon. Friends and myself. The amendments arose as a result of the evidence-taking sessions. As the Minister pointed out, they help to reinforce the value and benefit of such sessions. I welcome the beginnings of an important concession by the Government to the strength of our arguments on legally qualified chairs. I remind the House that the Committee divided on this matter in order to hold the Government's feet to the fire during the sitting. I shall not go over the arguments again at length, as they were covered more than adequately in the Hansard of Committee proceedings from column 372 onwards. However, the provisions on legally qualified chairs arose from recommendation 79 of the fifth report of Lady Justice Smith—then Dame Janet Smith—on the Shipman inquiry. She said:"““In the event that the GMC retains control of the adjudication stage, it should appoint a number of legally qualified chairmen who should, as an experiment or pilot, preside over more complex FTP panel hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits, whether in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and/or fewer appeals.””" All hon. Members felt that there was extraordinarily impressive and persuasive oral evidence relating to effective chairmanship, speed of proceedings, a higher standard of reasoned decision and an ability to deal with the complexities of the civil standard of proof. That evidence can be seen in column 37 of the Official Report of Committee proceedings. It will not have escaped the notice of the House that one aspect of introducing the civil standard of proof in the hearings is the complexity of its administration as a matter of adjudication and law, not least in ensuring that justice is done and seen to be done. As I shall try to explain, it has variability within it, unlike what we used to call the criminal standard of proof, of being ““beyond all reasonable doubt””, or as is more common nowadays, the standard of being ““sure””. I am pleased that the Government have introduced proposals for a list including legally qualified persons. The Minister has outlined that point in speaking to Government amendment No. 23, which was a response, as he knows, to the demands we made in Committee at column 374 of Hansard. Nevertheless, I have to say that our amendments Nos. 82, 83 and 84 are a neater way of delivering what he has sought to achieve in Government amendment No. 23. That amendment is intended to supplant, from the Government's perspective, our amendments Nos. 82 to 84, so I believe that we should see these a coupled set of arguments. I am pleased that the Government amendment was designed to draw on the arguments made in Committee, as reflected in the amendments. A number of concerns remain, however, particularly about the application of the civil standard of proof, the speed of proceedings and the definition of ““legally qualified””. On the standard of proof, the Bill moves fitness to practise panels away from the criminal and towards the civil standard of proof. In layman's terms, it is a move from ““beyond reasonable doubt”” or being ““sure”” to a balance of probabilities. We debated that point in Committee, as is shown in column 395, but unresolved issues remain and it is right for us to bring them up again on Report. There seem to be good reasons for the use of the civil standard and few differences between the parties arose in Committee. Indeed, Opposition Members supported the Government, but we remain concerned about the lack of piloting, particularly with regard to doctors. That problem still needs to be dealt with. I hope those reflecting on the Bill as it goes to the other place will give that issue some further urgent and important consideration. The concern arises because a statutory application of the civil standard results in a common law interpretation on a sliding scale that is difficult to reflect on the statute book. Consequently, a doctor before a panel faces an ever-rising hurdle in attempting to clear his or her name. The civil standard of proof will not be applied uniformly across the board—a very important point made by Lady Justice Smith in her evidence at column 38. This issue is important not just for the doctor, but for those sitting on the panels. They must have a clear understanding at the outset of what standard of proof on the balance of probabilities actually means on a sliding scale. Until they know the evidence, they cannot be sure of the standard of proof against which the truth must be tested. That is critical in the ultimate case where someone's livelihood is threatened and their fitness to practise questioned. There is a burden on adjudicators to ensure that their decisions are just and fair, made in a properly conducted way and, above all, not capable of being contested too easily by appeal. People must feel that the system is proper and fair to both parties when these very serious issues come before these panels. Another reason Lady Justice Smith gave for the use of legally qualified chairs was enabling hearings to be dispatched more quickly. We are all interested in securing efficiency and speed in such things, without causing any prejudice to the application of justice. She said:"““Legally qualified people who appear in front of such tribunals are capable of running rings around the tribunal if no one on the panel is legally qualified.””––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37.]" The GMC, which has lobbied against the universal application of legally qualified chairs, has failed to answer that point—something to which she also referred. She went on to say that while it is true that the broad quality of judgments currently made is indeed high—I am in no way seeking to criticise the GMC for the conduct of its hearings and how it has trained people—it would be better for all concerned if panels could be conducted no less thoroughly but more efficiently. It is with the issues of speed, efficiency and the application of the civil standard of proof in mind that we tabled amendment No. 85, which would make all fitness to practise panels subject to a legally qualified chair. Interestingly, to add substance to that point, page 4 of a document supplied by the Government themselves on 7 February in relation to professional regulation shows the cost of a three-person panel with a legally qualified chair for some fitness to practise cases and the cost of a three-person panel with a legal assessor for the remainder. Where legal chairs are used in 10 per cent. of fitness to practise cases, the estimate is £2.565 million. If they are used in 25 per cent. of fitness to practise cases, the estimate is £2.489 million, and it comes down to £2.374 million if they are used 50 per cent. of such cases. That helpful Department of Health document implies that if we used legal chairs in 100 per cent. of such cases, it would have the same trend in saving money and, as Lady Justice Smith would argue, in the increased dispatch, speed and efficiency of the cases. Therefore, the Department of Health itself has already laid out a good taxpayer value-for-money point on how it would be more efficient to use legally qualified chairs in all cases. I am disappointed that the Government are unwilling to define ““legally qualified”” in their amendment No. 30. Amendment No. 75 would help us to have that definition, and links to amendment No. 85, which would ensure that there is a qualified chair for all such cases. The Bill is in many regards a portmanteau Bill, with many of its powers devolved to rules and regulations. More than a quarter of the clauses relate to secondary legislation. It is perverse to leave to regulation what could easily be prescribed on the face of the Bill under the proper scrutiny of the House. The Bill contains a definition of ““legally qualified”” in paragraph 6 of schedule 6. Lady Justice Smith noted and commended that definition in oral evidence, at column 39. In Committee, my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright), who is not in the Chamber but has been assiduous in his attendance of our proceedings, made the excellent point that a legally qualified chairman would need not only legal experience but judicial experience. It is important to reflect on that. Having taken considerable advice, I had hoped that as Government amendment No. 23 went some way to making a concession on the grounds that we have advanced, I would not have to oppose it. However, I wanted to put amendment No. 85 to the vote, because what it contains is right and many outside this place would like to see it tested. Unfortunately, I am told, on the advice of the Clerks, that I cannot do that, which is much to be regretted. Procedure has overwhelmed what is a fair point, which should be available for testing. However, having put that difficulty on the record, I hope that it will be seen by those in another place who are exercised by such things. Many of them regard themselves as legally qualified and as having judicial experience. They will think that it is important to envisage how these significant proceedings will work, because they could be vital to protect patients and the public.