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Health and Social Care Bill

moved Amendment No. 118: 118: Schedule 7, page 147, line 8, leave out ““General Council”” and insert ““OHPA”” The noble Earl said: Before I address these amendments—like the Minister, I welcome the fact that we have moved on to Part 2—perhaps I could preface my remarks by saying that a number of amendments have been tabled in relation to the changes proposed for medical regulation, nearly all of which are of a probing nature. The value of the Grand Committee is that we can examine the proposals in the Bill in an atmosphere that is not going to result in any division of opinion. We are here to test the underpinning policy. I note that the GMC is concerned that some of the amendments tabled are apparently of a kind that question the decisions that have been taken by it and by the Government. But it is right that these matters are debated and not simply glossed over. The job of this Committee is to test policy and, therefore, I make no apology for having tabled the amendments. New Section 35ZA provides for the GMC to publish guidance on what type of sanctions should apply to the doctor, depending on the facts that are found by the adjudication panel. The OHPA must take account of this guidance. If the GMC believes that the OHPA has been too lenient, paragraph 11 of the schedule gives it powers to refer the decision to the court. The question posed by these provisions is this: if the intention is that the OHPA should be an independent adjudicatory body, how appropriate is it for the GMC to continue to determine the sanctions that should apply to fitness to practise decisions? The whole raison d’être of the OHPA is supposed to be that we have a body that is quite separate from the GMC, yet here we see this umbilical cord continuing to operate between the two bodies. The requirement to take into account the GMC’s guidance on sanction would appear directly to compromise the adjudicator’s independence at the sanction stage. Indeed, the GMC’s guidance on sanction is designed precisely to influence the adjudicator’s choice of what sanction to impose. There are those who view this as a direct fettering of the adjudicator’s discretion. In a fitness to practise case, it is the GMC that instigates the proceedings. Therefore the question is: is it counterproductive or helpful for the council to have a say in the outcome of the case? When we look at the process in a criminal court by way of comparison, we do not find that the court has to take into account any guidelines about sentencing supplied by the prosecution, yet here we have the prospect of that happening. I understand the counterargument that the GMC has powerfully advanced: that, as the guardian of medical ethics and medical standards, the council should have a direct role in ensuring that the operational guidance for the OHPA relates back to these standards in a way that is consistent and coherent. The guidance will be there precisely to support professionalism. If there is a derogation from it, it will set out how seriously that derogation should be treated. The GMC regards the maintenance of professional standards as its core function, and none of us would disagree with that. It argues cogently that all it is asking for is for the OHPA to pay regard to the guidance, no more than that. There need to be guidelines about sanctions and warnings—they are an important way in which consistency and transparency of decision-making can be achieved—but the question we need to address is whether the guidelines issued by the GMC are the only way of achieving the desired result. One alternative could be to allow the OHPA to draw up its own guidelines. It could do so in consultation with the GMC and the CHRE, as well as with other interested bodies. That is what the amendment proposes. What is at stake here is the visible independence of the OHPA from the GMC—and, indeed, from anyone else—in the interests of fairness and of justice being seen to be done. I have been quite open and, I hope, fair in recognising that there are arguments both for and against the maintenance of the umbilical cord between the GMC and the OHPA with regard to indicative sanctions, but we need to hear from the Government precisely why they favour such an arrangement when, as we all know, perceptions in these matters are so important. I would like to hear what answer the Minister has to the concerns I have outlined. I beg to move.