NHS Reform and Health Care Professions Bill

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Mr. Hutton: I shall come to that in a moment, because it relates to the hon. Gentleman's point about double jeopardy. We are referring the decision of the disciplinary committee and, potentially, the council to the High Court.

The hon. Gentleman expresses worries about the powers of the court, in the context of double jeopardy, and the options that it has. In clause 27(8), we have spelt out the options that the court should have and they are the widest range of options possible. The court could review the case itself and decide on appropriate sanctions. Equally, it could refer the case back to the regulatory body for a fresh determination. If, in principle, we accept that the High Court should have such jurisdiction, we should give it the widest number of tools and ones that are appropriate for the variety of cases coming before it.

There has been a misunderstanding that the judgment of the council could be substituted for the verdict of the disciplinary committee of the regulatory body, but that is not the case. I hope that clause 27(8) has made that clear. The role of the council is simply to make a decision using the provisions of the Act. Subsection (4) addresses the referring of such a case to the High Court; that will be the limit of council's responsibility, and it is not to substitute its judgment for that of the regulatory body of the relevant profession.

Dr. Murrison: The point that I was illustrating by referring to the right hon. Member for Holborn and St. Pancras was that it takes many months to form judgments on these issues because they are so complicated; the Bristol royal infirmary is a good case in point. My concern is that the judgment that the council comes to will not be sufficiently considered. Given the complexity of the issues and the expertise of those who make judgments—they may have been involved in such matters for many years—I am concerned that we do not know about the structure of scrutiny that is proposed under the Bill and that the judgment could be summary and not well considered.

Mr. Hutton: The hon. Gentleman should not write off the council as quickly as that and before it has even been appointed and begun its work. He should not lose sight of the fact that nine representative members from the regulatory bodies will sit on the council. That should reassure him because those will be people with experience of professional self-regulation. The council will not be acting or operating in the dark and it will not be able to act arbitrarily because it will be a public body with statutory responsibilities to discharge. If there is a sense that a decision has been arbitrary, opportunities to challenge and review it are also there. I get the sense that the hon. Gentleman does not want such appeal at all—that is the logical conclusion to his argument. He should address that and give us his opinion.

Mr. Heald: I did not understand the comments of my hon. Friend the Member for Westbury in the same light as the Minister. To give an example, let us say that there is a case involving a podiatrist and the matter is dealt with by the new Health Professions Council. First, the disciplinary committee hears detailed evidence from podiatrists about the behaviour of an individual and it decides that it shows incompetence but not of the worst sort. The matter then goes to the council, but there might not be a podiatrist on it. Will a hearing take place and evidence be called? How is the council to know whether the decision that has already been taken was reasonable or not? In court, evidence can be heard and findings considered, but what will the council be able to do to help it decide?

Mr. Hutton: The council will have to do what it thinks appropriate to reach a decision. I imagine that it would want to review the evidence available to the disciplinary committee or the final decision-making body of the regulatory body. That is entirely appropriate, but it could not reach an arbitrary decision that is not capable of being supported by the facts because that decision would be unreasonable. A number of people, including the registrant and the regulatory body, could seek a review of the council's decision.

The concerns of the hon. Member for Westbury suggest a fundamental lack of confidence in the council. That is untimely because the council has not yet established itself or been able to offer any assurances to the hon. Gentleman on how it will discharge those functions.

Dr. Murrison: I am forced to suspend judgment on the council because we do not know exactly how it will work. We have been given a broad brush idea of how it will discharge its functions and assurances that it will investigate only matters of pressing public interest, but there is little to suggest exactly how it will work. I hark back to the way in which such matters are investigated by the regulatory bodies. In general, we are talking about the GMC because most disciplinary cases concern doctors. The GMC does painstaking work to reach incredibly complex decisions and I do not have the feeling from what I have in front of me to examine that the council will act other than as a coach and horses through painstaking, piecemeal work that has been carried out by the regulatory bodies over the course of many months. I should be very grateful if the Minister could set out how the council will work and reassure me because, like him, I am anxious to protect the public.

The Chairman: Order. That is far too long for an intervention.

Mr. Hutton: I can only say that the hon. Gentleman has not listened to a single word that I have said, either about the reassurances that I have offered the Committee or my comments on how the council will operate. He is a person of good will and fair judgment and he will understand that I cannot stand up today and tell him how the council in every case that comes before it will make its decision on whether to refer a case to the High Court. I cannot possibly do that. The hon. Gentleman is asking me to do something that no Minister could ever do. However, I can tell him that the procedures must be fair, reasonable and justifiable, because they could easily be challenged by the registrant or the regulatory body if it felt so motivated. I tried to suggest earlier that we believe that there will be very few cases—perhaps one or two a year. His use of the phrase ''coach and horses'', given his observations on the number of such cases that the GMC consider, is, with the greatest respect, laughable.

I think that the hon. Gentleman misunderstands the provision and there is no point in my repeating my assurances because I have done so several times, but, sadly, not one of them seems to have penetrated the hon. Gentleman's mind. That must be my fault and not his, but I recognise my inadequacies in that respect and do not want to detain the Committee further with repetitious arguments. I have tried to clarify some of the issues for the Committee.

The more substantial point raised by the hon. Member for North-East Hertfordshire concerned double jeopardy and I want to say something about that. We envisage the power being used only in extreme cases when the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation. I gave an example earlier of the sort of case in which it could be used and I emphasise that it is a real example. A regulatory body re-admitted to the register a person who had been struck off for circulating paedophile literature. It did so on the grounds that he had done that away from his workplace and not during the course of professional practice. That decision caused enormous concern to the regulatory body, but it could not review the decision. There was no appeal. The hon. Member for Westbury asked me to give an example of a case in which there might be grounds for a right of appeal. Does he not accept that that might be such an example?

The question that should exercise the hon. Gentleman—it does not seem to be troubling anyone else here—is who should do that? Does he want me to do that, or the Secretary of State? I suspect not. Or would he like an independent council, drawing upon the experience of the regulatory bodies, to be entrusted by this House with that responsibility, knowing that it is subject to the full scrutiny of the courts and, of course, the legal rights of the registrant himself? It is a pretty overwhelming case.

Dr. Murrison: The Minister makes a good point. I do not know the details of that case, but on the face of it, it sounds abhorrent, and one that should certainly be a candidate for review. But, harking back to the snap judgment of the right hon. the Member for Holborn and St. Pancras on ''Newsnight'', my point is that if we are not in full possession of the facts, and have not had months and months of scrutiny, we might not be as well informed as the regulatory bodies. That is my concern. I simply seek reassurance about how the body will work—no more, no less.

10.30am

Mr. Hutton: I understand that point, and I have been trying to signal to the hon. Gentleman that the body must act reasonably, have a fair procedure for coming to a decision in relation to these issues, as any competent body must do, and satisfy the three separate thresholds that we have laid down before making any determination. It is not then the council's judgment whether a person has been unduly leniently treated or otherwise by the regulatory body; it is the High Court's decision that will ultimately determine this issue. That is a pretty formidable set of reassurances, which I hope, perhaps against hope, that the hon. Gentleman might come to acknowledge at some point.

The hon. Gentleman's analogy with criminal proceedings is largely false. The finding that the High Court, or its equivalent in other parts of the United Kingdom—the High Court in Northern Ireland or the Court of Session in Scotland—could overturn an appeal, would not be a verdict of not guilty, but, for example, a finding that the conduct investigated did not call a person's fitness to practise into question. As it happens, there is a partial precedent for that in the Attorney-General's references under the Criminal Justice Act 1988, upon which the hon. Gentleman might reflect. I do not consider it to be double jeopardy for a higher court to examine whether a lower court has erred in law. Neither would a person, whose case was appealed by the council to the High Court, thereby be placed, in any strict or in any loose sense of the word, in genuine double jeopardy.

It is also worth bearing in mind—this is my parting shot to the hon. Gentleman in the forlorn hope of persuading him to my side of the argument—that in current appeals from decisions of regulatory bodies the courts have generally been very reluctant to overturn regulatory bodies' findings, although they have the power to do so, unless those findings have been plainly wrong. I do not think there will be any reason to assume that there will be any different approach by the High Court in relation to cases that are referred to it under the Bill.

I hope that I have addressed the concerns that have been perfectly properly and fairly raised by Opposition Members. The problem is one of a lack of sufficient safeguards and a potentially serious loophole, which might allow people who should not be practising, to continue to practise.

I do not want to over-egg my pudding, because I have already made it clear that we think this such cases will be exceptional, but there is clearly a risk, and it is a risk that I am not prepared to countenance any longer. The clause creates a simple remedy to the problem, which I believe complies with all the requirements of legal process and the Human Rights Act 1998, by giving the council the power to refer a final decision by a regulatory body on a fitness to practise case to the High Court. The clause, as I made clear, gives the High Court the same powers to reconsider the case that it already has in cases that come to it on appeal by the registrant. Those powers are provided for all civil appeals in the civil procedure rules.

An alternative approach might have been for the regulatory body to be able to appeal against the decision of its fitness to practise committee. That clearly has some attractions and we are obviously aware of the efforts that the regulatory bodies are making in that regard. However, there are formidable legal difficulties in a single legal entity, such as the GMC, appealing against a decision made by one of its own committees. Those issues are being considered, but there are formidable legal difficulties in going down that path.

Our solution is a simple but effective one, which is pretty comprehensively dug in with safeguards of the kind for which the hon. Gentleman is looking, and which offers the public the safety and reassurance that it needs and which I believe it currently does not have.

 
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