NHS Reform and Health Care Professions Bill

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Mr. Heald: This has been a fruitful debate. I am grateful to the Minister for giving an assurance that the provision will be used only in the last resort, and that he envisages that very few such cases will arise. I am also pleased to hear that it will not provide an avenue for appeal against a not guilty decision, but will relate to issues such as admonishing those found guilty or restoring them the register.

My hon. Friend the Member for Westbury made a good point when he said that the procedures of the council are important. There is the analogous situation of one's confidence in the Attorney-General, who, as a lawyer, considers all the papers in a proper way. He has years of experience in judging whether a sentence is lenient, and tends to operate in areas where, as a lawyer, he can understand the ambit of sentence in the light of the facts. Some medical decisions are complex, and one can end up arguing about points of medicine that the ordinary layman would not necessarily understand. In a world in which medical specialism is becoming the way forward—there are now far less general physicians and general surgeons—the question of professional competence could raise detailed issues on which the professional conduct committee, which consists of doctors, would hear evidence. The committee would decide whether there was incompetence, and the gravity of it, on the basis of evidence from specialists.

In reviewing a decision and deciding whether to refer it, it is important that the council has the tools not just to read but to understand evidence heard by the professional conduct committee. For example, the council might need access to advisers on particular aspects of medical practice, and it might even want to call witnesses in a small hearing of its own in order to understand the detail of the issues. My hon. Friend the Member for Westbury was right to say that the procedures need to be rigorous, so that cases are referred only when necessary.

As I understand it, where one of the professional conduct committee filtering systems fails, the bereaved, or the relatives of the victim, could apply for judicial review on the ground that the decision of, say, the screening committee of the GMC had not been exercised in accordance with due process of law, or that it operated in an unreasonable way. They could then obtain an order from the court on judicial review, requiring the GMC to investigate, or to pursue an investigation beyond a certain level. Such a review took place in the case of Caryl Holmes, Derrick Dean and Valerie Dean v. the General Medical Council, Dr. M.M. Rahman and Dr. S. Sengupta. The court was happy to order that the investigation continue because there had been an error of law.

The Minister is right to say that there is no matter that the court could not address, but it would be on judicial review if an investigation that perhaps should have been pursued were not pursued. I should like to consider further what the Minister has said, but given what I have heard so far I will not seek to divide the Committee.

Clause 27, as amended, ordered to stand part of the Bill.

The Chairman: I wish to inform the Committee that there will be a meeting of the Programming Sub-Committee on the rising of the Committee at 11.25 am or earlier if an appropriate motion for Adjournment is put and agreed to.

Clause 28

Medical practitioners

Mr. Hutton: I beg to move amendment No. 249, in page 34, line 16, at end add

    'in whose sheriffdom the address in the register is situated'.

The Chairman: With this it will be convenient to take Government amendments Nos. 250 to 254.

Mr. Hutton: The amendments relate to provisions in four Acts—the Medical Act 1983, the Opticians Act 1989, the Osteopaths Act 1993 and the Chiropractors Act 1994—and the way in which, in certain limited situations, an appeal against a regulator's decision to remove a person's registration should be handled in relation to the Scottish courts.

For doctors, dentists and opticians, such decisions are those to remove registration on the ground that it has been obtained through fraud or error. I should make it clear that we are not dealing with fitness to practise cases. For osteopaths and chiropractors, the range of registration is broader, and includes the generality of such decisions—for example, where a person applying for registration was not of good character. The fraud and error provisions relate to, for example, a person who applies for registration as a physiotherapist, and presents certificates purporting to show recognised physiotherapy qualifications that are in fact forgeries.

Hon. Members will not be surprised to learn that, in a typical year, perhaps only two or three such appeals are made in respect of all professions throughout the United Kingdom. The Bill will divert those very few cases away from the Privy Council, along with fitness to practise appeals, which I shall discuss in due course. Subsequent clauses will make fitness to practise issues the province of the High Court, the Court of Session in Scotland, or the High Court of Justice in Northern Ireland. In England, the less-serious matters that we are dealing with today will be handled by the county court; in Scotland, we envisage that the sheriff court will handle them.

In Scotland, a professional whose name is to be removed from the register should be able to bring an appeal in a local sheriff court, just as such an appeal can be brought before a county court in England. However and as hon. Members may know, in Scotland jurisdiction relating to the sheriff court is based on the address of the defender—in this case, the regulatory body. Of course, the regulatory bodies are based south of the border and may not have offices in Scotland; they certainly do not have an office in each sheriffdom. The person in question would therefore find it difficult to raise an action in their local sheriff court—or, indeed, in any sheriff court in Scotland—because the Scottish courts have no jurisdiction.

Without the amendment, the perverse situation might arise whereby an appeal in Scotland could be heard only in London, but someone whose registered address was in Barrow-in-Furness—an excellent part of the country—could benefit from a county court hearing in Barrow. That would be unfair, and in effect would prevent Scottish cases from being heard in sheriff courts in Scotland. The amendments will ensure that such appeals can be heard in local sheriff courts in Scotland.

Mr. Heald: These seem sensible technical changes. I simply ask the Minister whether the domain of a sheriff court is similar to that of a county court.

Mr. Hutton: Yes, it is broadly similar.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Hutton: It might be helpful if I explain briefly a group of clauses that are very similar. Clause 28 provides for the transfer of appeals against fitness to practice cases from the Privy Council to the High Court, the Court of Session in Scotland, or the High Court of Justice in Northern Ireland. It also transfers from the High Court to the county court, or its Scottish equivalent, appeals against decisions to remove registration because of fraud or error. Clauses 28 to 32 deal with the important question of appeals. Clause 28 covers medical practitioners and amends the Medical Act 1983, and clauses 29 to 32 deal with the other professions in the same way.

The clauses divert appeals against the decisions of the regulatory bodies about fitness to practise cases away from the Judicial Committee of the Privy Council. A registrant currently has a right of appeal against decisions of regulatory bodies on fitness to practise cases that affect their registration—for example, a decision that someone should be struck off for professional misconduct. The Bill will divert those cases to the High Court.

10.45 am

We have agreed with the devolved Administrations that Scottish cases should go to the Court of Session and Northern Ireland cases should go to the High Court in Northern Ireland. The clauses' purpose is to introduce consistency across the professions. Under current law, some professions appeal to the Judicial Committee of the Privy Council while others appeal to the High Court. The clauses' purpose is to redirect appeals from doctors, dentists, opticians, osteopaths and chiropractors. Appeals from nurses, midwives, health visitors and pharmacists are already dealt with by the High Court, which provides a successful model for others to follow. The GMC, for example, has no objection to the changes that we are proposing.

To a large extent, the changes rest on Lord Woolf's report ''Access to Justice'', which was published in 1996. He called for a principle of proportionality to apply to the way in which appeals are handled. We agree with Lord Woolf's opinion that an appeal should go to the lowest court that is competent to hear it. He also recommended that statutory appeals against cases that have only been through one stage of hearing, which are the cases that we are currently dealing with, should go the High Court rather than a higher body.

Mr. Heald: I totally agree with the Minister on this point. Why were the Law Lords dealing with these decisions? Was there a historic reason for that?

Mr. Hutton: The reasons are largely historic. I may be able to provide further information to the hon. Gentleman, but I suspect that the answer is that this is how it has always been done. We must reconsider whether we can justify involving three Law Lords in hearing these types of cases; I do not believe that we can. The Judicial Committee of the Privy Council annually deals with about 30 of these cases, which is 10 per cent. of its case load. That is not a sensible use of resources and it cannot be justified in terms of the efficient operation of the justice system. I hope that the clauses will be considered as non-controversial and sensible because they command the support of the professions.

 
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Prepared 13 December 2001