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Health and Social Care Bill

This has been a useful discussion and I suspect that we will return to the question of pilots. However, I hope that I may be able to satisfy at least some noble Lords on these points. Turning first to Amendment No. 127, which would require the OHPA to have legally qualified chairs in all cases, I am glad to have the opportunity to set out why the Government do not believe we should make this decision on behalf of the OHPA. First, we have to look at how professional regulation adjudication is currently done. With the exception of the disciplinary committee of the Royal Pharmaceutical Society of Great Britain, all the professional regulatory bodies currently carrying out adjudication use lay and professionally qualified chairs supported by a legal assessor. The noble Baroness, Lady Finlay, and my noble friend are quite right to say that this is all about training and the quality of the person who chairs the committee. The system works well, and there is no compelling evidence that the OHPA should not continue with this approach. However, we agree that legally qualified chairs could be beneficial in certain types of cases. The Bill as amended on Report in the other place gives the OHPA the option of using legally qualified chairs for cases where it thinks it appropriate to do so. The OHPA might set out in rules that all complex cases—for example, those that involve a large number of witnesses or which are likely to be particularly lengthy—should have a legally qualified chair. Neither the Government, the General Medical Council nor the General Optical Council consider that the arguments for a legally qualified chair apply as persuasively to cases involving performance or health. In these cases, the main task is to draw conclusions from an assessment of the doctor’s performance or health, and the proceedings are not dominated by the examination and cross-examination of witnesses. Similarly, the benefits of having a legally qualified chair are less clear for conviction cases, or cases to consider determinations by other regulators, for example, where the practitioner is from abroad and has been struck off there. The British Medical Association has said that it, "““is not against the idea of a legally qualified chair for some OHPA panels, but would not wish to see all panels chaired by a legally qualified person …When choosing panel members and chairmen, the most important factor should be their competencies””." We agree that this is the key factor in the selection of chairs. That leads me to my second point. While we agree that there may be merit in having legally qualified chairs for complex cases, all the evidence shows that lay and professionally qualified chairs are perfectly capable of doing a good job in these and any other case. Within the system of professional regulation there is strong reliance on lay and registrant involvement as chairs and panel members. Lay involvement is not unique to this jurisdiction. We need look only at the contribution of the 30,000 lay magistrates in England and Wales, who deal with 95 per cent of all criminal cases, to understand the value of lay involvement. Amendment No. 130 would remove the provision under Clause 98 for a fitness-to-practise panel with a legally qualified chair to dispense with the services of a legal assessor. I understand the legitimate concern behind this amendment—that legally qualified chairs will not be able to provide the same quality or independence of advice to the panel as legal assessors, perhaps because they are also occupied with managing the proceedings. In giving the OHPA the flexibility to decide whether it wants to retain legal assessors where a panel has a legally qualified chair, we are confident that either alternative is fair to the individual practitioner. I can confirm that a panel with only a legally qualified chair would be fully compliant with Article 6 of the European Convention on Human Rights, as would a panel with a legal assessor. There is no reason why a panel chaired by a solicitor would be more or less fair than a panel advised by the same solicitor. He or she would give the same legal advice in either role, and this is the crucial point. I hope that noble Lords will agree that there is no clear evidence to support imposing legally qualified chairs for all cases, as in Amendment No. 127, or to force the OHPA to retain legal assessors on panels with legally qualified chairs, as in Amendment No. 130. It should be up to the OHPA, as an independent body, to decide what arrangements are most appropriate. The Bill requires the OHPA to consult on its rules and we expect it also to seek the advice of the Administrative Justice and Tribunals Council and consider the experience of other tribunals that use legally qualified chairs. Amendment No. 128 would remove the OHPA's ability to make rules for the purpose of piloting legally qualified chairs. The OHPA would have to make decisions about the use of legally qualified chairs of panels in different kinds of cases without having an opportunity to test its approach first. I recognise that, in allowing the OHPA to run a pilot, noble Lords need to be assured that it can be done in a way which does not compromise the fairness of the proceedings. I shall seek to give that assurance now. First, in order for a pilot to be fair, all panels must be compliant with Article 6 of the European Convention on Human Rights, which safeguards the right to a fair trial. We are confident that each of the possible options available to the OHPA will be compliant with this legislation. I say to the noble Earl that we do not have an exhaustive list of when legally qualified chairs will be used but they might be used advantageously where there are complex legal issues before the hearing; where allegations are complex; where there are multiple reasons for impairment—misconduct, performance and health; where a number of practitioners are connected with the allegations; where a large number of witnesses are called to give oral evidence; or where the allegations are of a criminal nature and there has been no prosecution or a criminal prosecution has failed. Secondly, in giving the OHPA the option to decide between having panels with legally qualified chairs, with or without legal assessors, we are looking at advantages and disadvantages in terms of effectiveness—for example, speed and cost—but not in terms of more or less fairness, nor in terms of better or worse legal advice. Lady Justice Smith, in her fifth report on the Shipman Inquiry, recommended that legally qualified chairs should be piloted for some cases. Clearly, Lady Justice Smith thought the proposal feasible. This was not an off-the-cuff remark but a key recommendation in her well considered fifth report. Finally, I emphasise that the Bill does not require the OHPA to run a pilot. The OHPA may be able to gather more evidence on these issues than is currently available to us and make an informed decision without a pilot. It will also have the advice of the White Paper working group chaired by Sir Ian Kennedy. If the OHPA decides to run a pilot, it will need to set out how it will do that in its rules, after working closely with lawyers to develop fair proposals. As I said, the Bill requires the OHPA to consult fully on these rules, and they are also subject to Privy Council approval. The Privy Council will approve the rules only if they are fair. As a final backstop, the order giving approval will be subject to parliamentary scrutiny under the negative resolution procedure. I recognise that these amendments raise valid concerns, and we have had a useful discussion. I hope that I have been able to reassure noble Lords that these amendments are not needed.