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Health and Social Care Bill

The procedural rules in fact say that they should be able to find a substitute, or they may have to delay the panel. Let me continue my remarks about other organisations that fulfil similar sorts of duties and do so with panels of three. First, I will respond to the noble Baroness, Lady Finlay, who made the point about the personality of one panel member on a panel of three who may come to a decision unfairly. If that were the case, I suspect that there would be far more successful appeals against GMC panel decisions; as it is, there are actually very few. We would expect the OHPA to create equality and balance in its panels. We do not think that, in this case, there is evidence that a panel of three is insufficient. I say to the noble Baroness, Lady Tonge, that the flexibility exists for there to be a larger panel if there is an important or complex case to be considered. It might well be that the cases that have been mentioned might be considered to be just such cases. A panel of three members is widely used by other bodies, such as the Solicitors Disciplinary Tribunal and many of the health professional regulators. In light of best practice in other adjudication bodies, I do not want to impose a larger panel on the OHPA, especially when it will have the discretion through its rules to vary the panel size according to need. Those rules will be subject to consultation under Clause 104, the approval of the Privy Council and parliamentary scrutiny via the negative resolution procedure. Amendment No. 124 seeks to ensure that there is a professionally qualified member on the panel who has ““relevant professional expertise””. We agree that it is important for the panel to have a professionally qualified member on it, and that is what the Bill provides for. The question is whether the amendment goes one step further by saying that the professionally qualified member must have ““relevant professional expertise””. I was reassured by the noble Baroness, Lady Finlay, that she was not suggesting that the person should be of the same discipline, and other Members of the Grand Committee have mentioned that. While I understand that there may, on the face of it, seem to be benefits from having this kind of knowledge on the panel, there would also be a real risk of such a requirement either undermining the independence of the panel—if it was a very small discipline that might be the case—or of delaying the panel because of the difficulty of finding someone. It is a question of whether ““relevant professional expertise”” ties the OHPA down in a way that would not be helpful. As set out in the White Paper Trust, assurance and safety, we recognise that professional regulation is a partnership between patients and professionals, and one must be fair to both sides of that partnership. In the context of the OHPA, that means requiring the panel to be, and to be seen to be, as independent as possible from the case that is in front of them. The role of the professionally qualified member is not as a representative of the professional before the panel. The professionally qualified member is there first to ensure that there is an appropriate balance in the composition of the panel, and secondly, like the other panel members, he or she is there to listen to the evidence presented to the panel and make a decision about a practitioner’s fitness to practise on the basis of that evidence. Requiring panels to have someone with ““relevant professional expertise”” may have serious implications, as I have outlined. I hope that this explains why the Bill sets out an alternative way of making sure that the panel has the expert advice from professionals that it may need to make a decision. I think the noble Lord, Lord Walton, mentioned that. Clause 99 provides for expert advice to be available from outside the panel from either clinical or specialist advisers, which will be made available to all parties. Further advice may be sought by either party to the proceedings in the form of expert or other specialist witnesses. With that reassurance, I hope that the noble Baroness, Lady Finlay, sees that the Bill allows for the proper provision of specialist advice in a way that does not compromise the independence of the panel, and that she will feel able to withdraw her amendment.