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Health and Social Care Bill

I thank the Committee for a very interesting discussion. As Members have realised, Amendments Nos. 118 and 119 would require the guidance on possible sanctions to be published by the OHPA rather than the GMC, as is now the case. With the transfer of adjudication to the OHPA—I keep wanting to call it OPRA, I am sorry; I will get it right—it is important to safeguard the continuing consistency of sanctions decisions. There is a clear need for such guidance to continue to be published, and I am confident that it is right for the GMC to do that. Let me explain why we want to go down that route, and perhaps offer some comfort to the noble Baroness, Lady Tonge. I do not think that I need to defend the noble Earl, but he said that he wanted to explore the issue. To be on the medical register, practitioners will need to comply with the standards set by the GMC. The gold standard, as it was described by my noble friend, is Good Medical Practice. As that is the basis on which cases will be put to the OHPA, it is appropriate for the GMC to publish guidance on the interpretation of those standards and the sanctions that might be appropriate if a practitioner fell short of them. As I said, Amendments Nos. 118 and 119 provide for the OHPA, not the GMC, to produce that guidance. The Medical Defence Union has argued for the change proposed by the amendment on the grounds that requiring the OHPA to follow the GMC’s guidance would interfere with the independence of the OHPA. The Committee is quite right to test and discuss that. I agree that panels must not be unduly influenced by the guidance published by the regulators on the appropriateness of sanctions. That is why the Bill says that the OHPA must take account of it. It does not say that the panel must follow the guidance if there is good reason to depart from it. I take this opportunity to state on the record that the OHPA’s panels will be perfectly at liberty to make their own decisions. Clearly, a panel cannot operate in isolation from Good Medical Practice and the GMC’s sanctions guidance, which is derived from it, but it will not be bound to impose a specific sanction in an individual case if it does not think that, in the particular circumstances of that case, such a sanction is appropriate. It is also important that guidance is general rather than unduly prescriptive. The noble Baroness, Lady Finlay, asked whether the GMC can question inappropriate guidance. Yes: if a decision is inappropriately harsh an individual has the right of appeal to the High Court. The right of appeal of the GMC is therefore to cover cases where the decision seemed appropriately lenient. The noble Baroness also asked about compliance with human rights. We carefully considered the issue of compliance with Article 6 and the council’s decision obtained by the Medical Defence Union. We do not believe that the guidance will fetter the discretion of the OHPA, nor is it incompatible with Article 6 of the European Convention on Human Rights. The Committee may be aware that the GMC is currently revising its Indicative Sanctions Guidance, and has just completed a public consultation, which closed on 9 May. The draft guidance that the GMC has produced does not attempt to set out a tariff of the sanctions that the panels must apply in a particular kind of case, and I agree it is important that it does not do so. The draft guidance sets out a range of factors that may lead panels to conclude that it would be appropriate for the protection of the public to consider a particular sanction, such as the suspension of a doctor from practice. It makes clear that if the panel considers suspension to be the appropriate sanction, the length of that suspension is wholly within the discretion of the panel. It is entirely right that this sort of general guidance can be given by the body responsible for setting professional standards, and I do not believe that such guidance will compromise the independence of the adjudicator. The OHPA will obviously have to ensure that the way the guidance should be taken into account is covered in the training it gives its panel members and that its panels are making decisions in a fair and consistent manner. This is a key task for the OHPA board, and it will be the board’s job also to monitor it. I hope that, having heard that explanation, the noble Earl will feel able to withdraw his amendments.