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Baroness Carnegy of Lour: Perhaps I may ask a quick and more detailed question as regards the inter-relationship between Clause 47 Schedule 3 and the Scottish Parliament. The Explanatory Notes state that Schedule 3, paragraph 5,

Can the Minister say whether it is conceivable that paragraph 5 of Schedule 3 could allow Scottish Ministers to set up bodies which conflicted with those protected from change under the Bill? I am trying to be helpful to the Government in this case. It may be that there is a clash between what is allowed under that

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paragraph and what the Minister told me about paragraph 2 as regards what an order may not do. It will be helpful and comforting to know the answer to that question, if it is possible.

Lord Christopher: I had not intended to speak in this debate until I noted that the president of the General Medical Council, under whom I served for some five and a half years, was speaking in it. I left the GMC after that time because the law said that I should at my age. I found that somewhat troublesome at the time because one of the matters being discussed was euthanasia.

The noble Lord, Lord Kilpatrick, earned my respect, as has his successor, Sir Donald Irvine. Having listened to some of my colleagues perhaps I may make a few remarks which may encourage the supporters of the amendment to reflect. I recognise that they will wish to hear what words of comfort may come from our own Front Bench.

A number of factors relating to the GMC do not justify the worries which the supporters of the amendment have. In my experience the medical profession can only be effectively regulated, under whatever umbrella, by doctors. I have served on the ethics and the disciplinary committees. It is perhaps worth mentioning in passing that the doctors were invariably tougher with those against whom allegations had been made than were the lay members. Now there is such a range of professions. There has been mention of a disease and there is a specialism for that. I do not myself see that doctors could ever be other than largely in a majority. I do not believe that a lay committee could effectively do what was required in majority terms.

The president of the General Medical Council is not a kind of union general secretary, but there are similarities. I recall a number of debates in which the noble Lord, Lord Kilpatrick, fought very hard to persuade members towards some change and received a good deal of opposition in the process. As the general secretary of a union in the past, I know how useful it was to have some sanction which enabled me to say to people, "If we do not perform in the way that the public expect we are under an earlier threat than we might have been otherwise under the regulations".

I cannot believe that the GMC is under any serious threat of becoming nationalised provided that it performs well. It is most likely to be able to do so by achieving quick change rather than in a three-year cycle, which I remember very well. Parliamentary time stood in the way of change and it will stand in the way of other change in future, the nature of which we cannot judge. I say to my noble friend Lord Peston that most of the doctors I came across who had gone down the market road were struck off. Therefore, there is not a serious threat in that direction. I believe that, subject to what the Minister has to say, it will be good to give some thought to this area. I do not believe that the fears expressed are fully justified although I understand them.

Baroness Hayman: We have had an extremely useful debate about an area of this legislation which is of great importance to all who have considered the issues concerning professional self-regulation. At the

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beginning I assure the noble Lord, Lord Kilpatrick of Kincraig, that there is no sinister motive surrounding "the regulation of the professions" as set out in the Explanatory Notes rather than professional self-regulation. I hope that I have made it absolutely clear on a number of occasions that the primary purpose of the Government is the protection of the public. As has been eloquently expressed this afternoon, we believe that with these professions the public has been in the past, and will continue to be, best protected by effective self-regulation of the professions.

The purpose of bringing forward these proposals is not in any way either to dismantle professional self-regulation or undermine it. I feel a little bruised occasionally. The point has been made many times in the debate today about the pressure from the professions themselves regarding the frustration they have felt at being unable to amend the provisions concerning professional self-regulation. There are concerns that we may not have drafted the legislation correctly. That is usually expressed first. Then there is a kind of throwaway line that the need to do that is recognised and that it is not desired to stand in the way of the general principle.

Perhaps I may put the matter the other way round. It is in everyone's interest to get on with the job of strengthening professional self-regulation and the order-making powers are brought forward in order to achieve that, and not for any sinister motive. On that basis, I hope there has not been produced the despondency and distrust to which the noble Earl referred. Some people will be glad that they will be nearer to getting on with the job that needs to be done in terms of providing a more satisfactory framework for professional self-regulation.

I was looking at the terms in which the professions supplementary to medicine can deal with individual members. They have to look at the conduct of individual members and see whether there has been,

    "infamous conduct in any professional respect".
I am not sure that that is the most appropriate way of looking at "fitness to practise" issues as we approach the 21st century. There are a whole raft of areas in relation to protection of title about which we have talked at great length today where those proposals will be of absolute benefit. To be more conciliatory, I was particularly grateful to my noble friends Lord Desai and Lord Peston for bringing economists into the debate. It would unite the whole Committee to agree that the public deserve to be afforded some protection from the profession of economists who are as capable as anyone else discussed tonight of doing harm.

At Second Reading I explained the broad thrust of our policy regarding the order-making power. We are seeking to provide a mechanism that will enable us to modernise and strengthen the existing systems of professional self regulation. We intend to work with the professions to ensure that those systems are more open, responsive and publicly accountable. A number of proposals are already on the table for the use of the power. The replacement of the Professions Supplementary to Medicine Act and the Nurses, Midwives and Health Visitors Act are two such proposals. But the other professions also have changes

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that they wish to make. Those have been alluded to today. The dentists, the professions supplementary to medicine and the pharmacists are anxious to make progress. The order-making power must therefore be of sufficient scope to ensure that the differing needs of each profession can be met. That is sometimes where difficulty arises. One professional group looks at the provisions as they stand and feels that they are wider than they want. But it does not look across the whole span of what we need to do.

We recognise--as I hope I have made clear throughout our debate--that there need to be safeguards. The Bill currently contains a number of important safeguards which have been widely welcomed. I have mentioned too the procedural requirements around consultation and affirmative procedures which we intend to strengthen in the light of the recommendations of the Delegated Powers and Deregulation Committee. I hope that the noble Baroness, Lady McFarlane, will accept that these are not just reassurances or empty words; they are government proposals to bring forward amendments that will be on the face of the Bill.

There is also the provision that the main regulatory bodies cannot be abolished--with the exception of the CPSM, and soon the UKCC, for the reasons I explained--and I shall come later to the safeguards that we must introduce for those successor bodies. I take the point that they should not be left in limbo but should be allowed the same protection as the bodies that will be ongoing. The four functions which we believe are at the heart of professional self-regulation--the keeping of the register, the setting of standards of education for entry into the profession, the provision of guidance on standards of professional conduct and fitness to practise procedures--cannot be removed from professional regulatory bodies by order.

We therefore have clear limitations on the order-making power already on the face of the Bill. But, as I said at Second Reading, we are seeking to do something which we believe to be in the interests of the professions themselves as well as in the interests of patients. And if there are ways in which we can improve the balance which needs to be struck in these provisions--of ensuring sufficient scope to make the changes that need to be made and providing appropriate safeguards--then we would consider them carefully and constructively.

That is the light in which I have listened to the debate. Perhaps I can therefore turn to a number of different issues which have been raised. The Committee will understand that the changes that we may bring forward will need to be drafted not necessarily in the way that they are drafted in specific amendments.

I turn first to the issue of lay membership. We received representations from some of the statutory regulatory bodies about their concerns that the order-making power might be used to impose a majority of lay members on the bodies. My honourable friend the Minister of State for Health and I wrote to the regulatory bodies to reassure them that,

    "We welcome the moves of some Councils to increase lay membership and improve accountability to the public and would want to see the power used for such changes quite soon. We would not, however, wish to impose a lay majority".

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We understand the great importance attached by the regulatory bodies to the fact that they are part of the system of professional self-regulation. It is clear that one of the main advantages of such a system is that there is a large measure of professional knowledge and experience in the membership of the body, leavened by a good proportion of lay involvement. As has been pointed out, the GMC, in the past couple of years, increased the proportion of lay members to 25 per cent. while the Medical Act still requires a majority of members to be elected by doctors on the medical register from those on the medical register.

It is equally important that self-regulation should not operate to the exclusion of perspectives other than those of the profession concerned. The presence of lay members on regulatory bodies and committees serves many functions. It provides an opportunity to involve people with different expertise and experience. It also ensures that professional regulatory bodies do not operate in isolation from developments and changes in other parts of the professional world or society at large.

The point was made that the climate in which professional self-regulation takes place today is very different from the climate in which some of the original legislation was passed. Perhaps most importantly, lay involvement reinforces and provides a visible demonstration of bodies' commitment to regulation which places the public interest--be it that of individual patients or the public at large--above those of the profession itself or of its individual members.

I know that the General Dental Council wishes to increase its lay membership from six to 12 and that the Royal Pharmaceutical Society of Great Britain consulted on proposals which will alter the composition of its statutory disciplinary committees while ensuring that there continues to be a strong lay element. We are sympathetic to the spirit of the amendments tabled on this issue. We do not wish to impose a lay majority. I shall therefore consider placing this commitment on the face of the Bill. I should like to consider the issues raised in this debate and bring forward proposals.

I turn now to the issue of penalties and the amendment which seeks to ensure that there is no reduction of penalties. I applaud the sentiment behind the amendment. We need to give patients effective protection from charlatans. There will be little protection afforded if protection of title is not backed up by the possible imposition of a penalty. I can assure the Committee that the Government have no intention of weakening the deterrent against potential abuse. However, for a criminal offence, two elements determine the penalty which may be imposed. One is the maximum level on the standard scale at which a fine may be levied. The other is the actual amount that is attached to each level as set out in the standard scale. The standard scale applies to all criminal offences, not just those in respect of professional self-regulation. The proposed amendment would limit any subsequent review of penalties and while, as I said, we have no intention of weakening the deterrents available in this field, given the integration with Home Office

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responsibility on other criminal penalties, it would be wrong to be prescriptive on the face of the Bill on this issue.

I turn to the role of the Privy Council. I understand that many of the professions attach great importance to their accountability to and relationship with the Privy Council. There are many matters that at present require the approval of the Privy Council; for instance, the making of rules for fitness to practise committees. We are happy to see those accountability arrangements for the existing regulatory bodies continue.

In respect of new and replacement organisations, I think it is right that their lines of accountability should be fully explored through consultation at the time they are set up. The Government have given a commitment in relationship to the CPSM, for example, to address this issue as part of the discussions with the professions on the constitution of its successor body. We would nevertheless expect strong justification for change where the present arrangements can be shown to have worked well.

I should point out that this is not the only model that can work well. The UKCC is accountable not to the Privy Council but to the Secretary of State and that accountability relationship has been very effective. I have heard the concerns which have been voiced today, however, particularly in relation to the professions allied to medicine. It would perhaps be helpful to say that when we do consult on the replacement body for the CPSM we intend to do so on the basis of retaining accountability to the Privy Council for any such successor body.

We have argued thus far for avoiding placing this sort of detail on the face of the Bill but, given the strength of feeling that has been expressed this evening, I would be grateful if the Committee allowed me to consider the matter further and to undertake that I would be willing to bring forward an appropriate amendment, if it is possible to formulate one--and I believe that there are some difficulties in the drafting here--which preserves the role of the Privy Council in respect of the existing regulatory bodies.

I turn now to the transfer of functions from the regulatory bodies. I have already made clear our intention to ensure an appropriate balance between flexibility and safeguards. I am grateful for the contributions to this debate in assessing whether we have struck the balance appropriately in the Bill as currently drafted. I take the point that the nuances may not have been perfect in original drafting. One of the benefits of introducing a Bill in your Lordships' House is that we have the opportunity to go into this sort of detail and to look at ways in which it can be improved. I hope that this will not be seen as backtracking or sinister motives, but as a genuine attempt to get that balance right.

On the issue of determining cases, the Government remain concerned about poorly performing doctors and other professionals and are considering the best way forward on a whole range of issues arising from handling doctors' performance in particular. This includes identifying poor performance and dealing with

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it, either within or outside the disciplinary procedures as appropriate. We consider that the role of the statutory regulatory bodies in administering the procedures relating to misconduct, unfitness to practise and similar issues is a fundamental matter that may need to be modernised: but we are clear that, if professional self-regulation means anything, the profession's regulatory body should determine individual cases and we have no intention whatsoever of removing this function from the regulatory bodies.

I am sure that the phrase "administering procedures" in paragraph 8(2)(d) of Schedule 3 also includes the determining of individual cases. On that basis I believe that that amendment is unnecessary. I hope that explains our position and will give some reassurance to the noble Lord, Lord Walton, that it is not necessary to press his amendment on this particular issue.

In respect of Amendment No. 211, which adds the functions of determining fees and continuing professional development to the list of fundamentals, I can assure the Committee that the Government are fully committed to encouraging and promoting continuing professional education and development. Indeed, the encouragement of life-long learning is one of the Government's key objectives across the board, not only in the field of health and healthcare and not only for the professions, although of course it is of key importance for the professions.

The independence of the statutory regulatory bodies from government interference in the minutiae of their workings is understandably important to them. Financial matters give cause for much debate in the medical profession especially, and the freedom to set registrants' fees is an important matter for all professions if they are to maintain their financial viability. It is not the Government's intention to wrest control of bodies' financial arrangements from them, and I can say categorically that we would not be using the order-making power so to do. I do not believe, however, that it is an issue so fundamental that it is appropriate to place this level of detail on the face of the Bill.

We have said that there are four fundamental functions which are essential to what we understand as professional self-regulation: keeping the register; setting the standards of education for entry into the profession; the provision of guidance on standards of professional conduct, and fitness to practise procedures. We believe that we have these essential functions, which need to be protected, right and we believe that they should be maintained.

The amendment of the definition of a regulatory body to include its committees raises a number of important issues, when taken together with the other amendments. It would, for example, prevent the abolition of any committee of any of the regulatory bodies. This will need careful thought. While the Government have no wish for a power which permits the removal by order of functions which are central and necessary for proper regulation of the professions, we are equally concerned to ensure that the power we do take is flexible enough to deal with as yet unforeseen developments. In this particular case, I am anxious that we should not end up

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with a position which prevents an order being used to bring forward proposals for the statutory regulatory bodies to modernise or rationalise existing committee structures. I am therefore of the view that this amendment would make the order-making powers unnecessarily inflexible.

I should like now to deal with the issue raised by the noble Baroness, Lady Carnegy, and to reassure her that there can be no separate regulation of the currently regulated health professions in Scotland. It is a reserved matter, subject to the caveats about new professions which I made earlier. This gives the power to the UK Government to confer functions on the Scottish Ministers, if it were felt appropriate. There are analogies now in the national boards for nurses, midwives and health visitors. I hope I have assured her, however, that there is not the possibility of a dual structure.

6.15 p.m.

Baroness Carnegy of Lour: I thank the noble Baroness very much for that. The position is perhaps a little more complicated, and it might be that her colleague the noble Lord, Lord Macdonald, will be able to look at it from the point of view of the Scottish Office and write to me. I could then pass that on to the British Medical Association. Would that be in order?

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