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Peer Pressure - Finlay Scott Under Fire The Southall case reached the House of Lords this month. Baroness Golding who once supported the Henshalls switched to support Dr David Southall some months ago. The reasons were made abundantly clear in her letter to the Sentinel sometime ago. She wrote “It Was I, as the former MP for Newcastle-under-Lyme, who first asked for an investigation on the use of CNEP as a treatment for desperately ill babies with serious breathing problems. I did this following evidence shown to me by Mr and Mrs Henshall which was, for the main part, not directly related to the North Staffordshire Hospital. Since then, I have followed closely media reports of the various actions being taken against paediatricians, especially Dr Southall. I have often looked in disbelief at the virulent attacks on Dr Southall and have had many unquiet moments about the way I first dealt with Mr and Mrs Henshall's concerns and whether I could have dealt with them in another way. This latest action by the General Medical Council in banning Dr Southall from working” “When I first met Dr Southall I was impressed by his commitment to help and protect children. Nothing that has happened since has led me to think I was wrong. Only a person who believed in what he was doing could survive the abuse he and other paediatricians have put up with for so long. I ask the question, why? These doctors have, over the years, worked in a spotlight where their every moved was liable to be questioned. In whose interest? At what cost? The medical world should never stand still. Adults’ voices can always be heard, but who should speak for the child?” See: Dr Southall Was A Rare Voice For Abused Children The House of Lords recently debated the Health and Social Care Bill. The Motion provided by Professionals Against Child Abuse was also discussed. 14 May 2008 : Column GC351 Schedule 7 [Adjudication functions under Medical Act 1983 and Opticians Act 1989]: Earl Howe moved Amendment No. 118: Schedule 7, page 147, line 8, leave out “General Council” and insert “OHPA” The noble Earl said: Before I address these amendments—like the Minister, I welcome the fact that we have moved on to Part 2—perhaps I could preface my remarks by saying that a number of amendments have been tabled in relation to the changes proposed for medical regulation, nearly all of which are of a probing nature. The value of the Grand Committee is that we can examine the proposals in the Bill in an atmosphere that is not going to result in any division of opinion. We are here to test the underpinning policy. I note that the GMC is concerned that some of the amendments tabled are apparently of a kind that question the decisions that have been taken by it and by the Government. But it is right that these matters are debated and not simply glossed over. The job of this Committee is to test policy and, therefore, I make no apology for having tabled the amendments. New Section 35ZA provides for the GMC to publish guidance on what type of sanctions should apply to the doctor, depending on the facts that are found by the adjudication panel. The OHPA must take account of this guidance. If the GMC believes that the OHPA has been too lenient, paragraph 11 of the schedule gives it powers to refer the decision to the court. The question posed by these provisions is this: if the intention is that the OHPA should be an independent adjudicatory body, how appropriate is it for the GMC to continue to determine the sanctions that should apply to fitness to practise decisions? The whole raison d’être of the OHPA is supposed to be that we have a body that is quite separate from the GMC, yet here we see this umbilical cord continuing to operate between the two bodies. The requirement to take into account the GMC’s guidance on sanction would appear directly to compromise the adjudicator’s independence at the sanction stage. Indeed, the GMC’s guidance on sanction is designed precisely to influence the adjudicator’s choice of what sanction to impose. There are those who view this as a direct fettering of the adjudicator’s discretion. In a fitness to practise case, it is the GMC that instigates the proceedings. Therefore the question is: is it counterproductive or helpful for the council to have a say in the outcome of the case? When we look at the process in a criminal court by way of comparison, we do not find that the court has to take into account any guidelines about sentencing supplied by the prosecution, yet here we have the prospect of that happening. I understand the counterargument that the GMC has powerfully advanced: that, as the guardian of medical ethics and medical standards, the council should have a direct role in ensuring that the operational guidance for the OHPA relates back to these standards in a way that is consistent and 14 May 2008 : Column GC352 coherent. The guidance will be there precisely to support professionalism. If there is a derogation from it, it will set out how seriously that derogation should be treated. The GMC regards the maintenance of professional standards as its core function, and none of us would disagree with that. It argues cogently that all it is asking for is for the OHPA to pay regard to the guidance, no more than that. There need to be guidelines about sanctions and warnings—they are an important way in which consistency and transparency of decision-making can be achieved—but the question we need to address is whether the guidelines issued by the GMC are the only way of achieving the desired result. One alternative could be to allow the OHPA to draw up its own guidelines. It could do so in consultation with the GMC and the CHRE, as well as with other interested bodies. That is what the amendment proposes. What is at stake here is the visible independence of the OHPA from the GMC—and, indeed, from anyone else—in the interests of fairness and of justice being seen to be done. I have been quite open and, I hope, fair in recognising that there are arguments both for and against the maintenance of the umbilical cord between the GMC and the OHPA with regard to indicative sanctions, but we need to hear from the Government precisely why they favour such an arrangement when, as we all know, perceptions in these matters are so important. I would like to hear what answer the Minister has to the concerns I have outlined. I beg to move. Lord Walton of Detchant: Rarely in proceedings in your Lordships’ House do I ever find myself in disagreement with the noble Earl, Lord Howe. I have to declare an interest as a past president of the General Medical Council. I admit that my seven-year presidency ended in 1989 before I became a Member of this House, so the GMC and its responsibilities have changed substantially since that time, but surely the White Paper and its proposals that related to some of the recommendations of Dame Janet Smith in her important report were designed to remove from the GMC the final jurisdiction over doctors who were being accused of serious professional misconduct, and whose fitness to practise was in some respect impaired by reason of either conduct or health. It is for that reason that—although I have some reservations about many aspects of the White Paper—the OHPA was so designed to stand in the Bill as being the final court, taking away from the General Medical Council the responsibilities for the legal proceedings against any doctor whose fitness to practise was regarded as being impaired. Surely, that independence would now be prejudiced if the OHPA were to be invited not only to be the final court of judgment but to lay down the criteria on which issues of professional unfitness to practise were defined. The GMC has made it clear in its letter that its core guidance in Good Medical Practice, “sets out the principles and values on which good practice is founded and describes medical professionalism in action. The guidance describes what is expected of all doctors registered with the GMC”, and has always made it clear that doctors may be disciplined if they show, “serious or persistent failure to follow the guidance”, 14 May 2008 : Column GC353 because that failure can put their registration at risk. The letter goes on: “Good Medical Practice not only describes how doctors should behave, it sets the standards against which their behaviour is evaluated in any investigation and informs the criteria against which a fitness to practise panel should consider whether their fitness to practise is impaired”. I am very sad, having talked on Monday about the purity of the English language and correct phraseology, to find that an official letter from the GMC goes on to say, “this criteria for panel decision”, which should be “this criterion”; being singular and not plural. I pass that over. I quote: “These amendments would change responsibility for the production and ownership of Indicative Sanctions Guidance from the regulator to OHPA”— In other words, from the body that is setting the standards to the body that is determining whether those standards have been breached. It would mean that if fitness-to-practise panels were to make decisions, “without taking into account the GMC’s guidance, then OHPA would be in a position where it was, de facto, setting the standards for medical regulation and usurping the role of the GMC as a standards setting body for the medical profession. It would also generate confusion for patients and the public if it appeared that two separate bodies appeared to be responsible for setting standards for doctors”. I could say much more, because there should be that separation between the standards-setting body and the body that is concerned with the decision as to whether those standards had been breached. In the GMC’s briefing several quite important decisions by learned judges appear to clarify that situation. For that reason, with deep regret to my colleague the noble Earl, Lord Howe, I cannot support the amendments. Baroness Finlay of Llandaff: I slightly disagree with the noble Lord, Lord Walton, and I do so in fear and trepidation as a doctor who is registered with the GMC and who was registered when he was presiding over it. This demonstrates the importance of Grand Committee on a topic that is so fraught. The reality is that the livelihoods are at stake of professionals who have been high achievers and who want to achieve well throughout their careers; and something has happened and they have come crashing down, for whatever reason. I remind the Committee that we must remember that in this country people are innocent until proved guilty and that, under Article 6 of the European Convention on Human Rights, people have the right to a fair hearing by an independent and impartial tribunal. The hearing includes the totality of the case at the fact-finding stage and the sanctions stage. I have been influenced in the way that I regard this amendment by the fact that the Medical Defence Union is not happy with the wording of the Bill, and some of the reasons for that have become important for the profession. The GMC guidance on sanction could be perceived to have a built-in bias because there is no requirement in the Bill for that guidance to take a balanced view. One part of sanctions is not to 14 May 2008 : Column GC354 strike doctors off, but to ensure and be able to enforce that such doctors are retrained in whichever area that training is needed, or that they seek the kind of support they need for their professional practice that perhaps they have not had for many years. There is a clear and compelling need for the OHPA to have published guidelines on sanctions and warnings, but I can see the arguments for the adjudicator to draw up its own guidelines, albeit with guidance from the GMC. It is the strength and power of the messages moving along that umbilical cord, as the noble Earl, Lord Howe, put it, that becomes important. I may have misinterpreted the Bill, but it appears that the GMC is able to question an inappropriately lenient decision by the OHPA in the event of a decision being taken, but I am not sure that the GMC is able to question an inappropriately harsh decision. What protection is built in for a doctor where the OHPA decision seems to those in the regulatory body to be inappropriately harsh? 5.45 pm Baroness Tonge: I want to add a few sentences. I, too, am very disturbed by the noble Earl’s amendment because, like the noble Lord, Lord Walton, I find that I usually agree with him. Indeed, I wonder if I am saying the wrong thing because I am disagreeing with him. But I am worried about a general trend which seems to be developing in the National Health Service that almost deprofessionalises the profession. I hope that I am not putting it in too strong terms. We are no longer the great medical profession, we are part of the workforce of the National Health Service and we are being regulated and told what to do. In the past year, we have even been told how to train junior doctors, right down to where they should apply and what form they should download from the internet. I hope that the Minister can reassure me that there is no intention on the Government’s part to deprofessionalise the medical profession. At the moment, there is a great danger that this is beginning to happen because the profession has for decades worked loyally with the National Health Service. It is a dangerous development and the medical profession is starting to see a red light and to wonder what its future is within the health service. Maybe I am generalising too much, but that is my worry, and it is encapsulated in the noble Earl’s amendment because I am afraid that it may be one more step in the deprofessionalisation of the profession because it would somehow diminish the role of the GMC. I would not want that to happen. My noble friend Lord Carlile is not yet in his place—I hope that he will arrive soon—but I wonder what would happen if the same sort of processes were introduced for lawyers. I think that there would be an awful stink, but of course it cannot happen to them because they do not work for a national legal service, they are still independent. That is my contribution and I hope that the Minister can offer some reassurance. Baroness Jones of Whitchurch: I suppose I should declare an interest as someone who has been employed on fitness-to-practise panels for the past couple of years. I, too, was disappointed to see the 14 May 2008 : Column GC355 amendment of the noble Earl, Lord Howe, because one of the things that I have felt for several years is that the GMC has been on a long, learning journey from which it has learnt the lessons from the big legal cases and the big inquiries and is in the process of modernising to take account of those lessons. I have been very impressed by the openness with which it has done that, and I am aware of the amount of dialogue and support that there has been for what the Government propose here, so to start saying at this stage that we can do better than that is unfortunate. I do not want to echo all the good things that the noble Lord, Lord Walton, said, which are included in the GMC’s briefings, but I do think that the document, Good Medical Practice, is a gold standard. It is not a static document; it has evolved over time. My understanding is that doctors hold that document in very high esteem. It is more than just about establishing professional standards; it is something against which doctors accept they should be evaluated. We should not lose sight of that document. It would be hard for a new organisation, however worthy, to find the eloquence and the expertise to replicate that document, so we should not lose sight of its importance for doctors’ training and professionalism. I will not go on or I will repeat comments of colleagues. I oppose the amendment. Baroness Howarth of Breckland: I did not intend to speak in this part of the debate, but the noble Baroness talked about professionalism, which made me stand to my feet. I am afraid that I support the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, in this matter. This is a question of how we reassure the general public that there is a separation of powers. This is done in all sorts of areas. Many organisations have a part that hears complaints, and adjudication and sanction are often separated out from the professional body that sets the standard. This debate should be had because we got into difficulties previously when we used this word “professionalism” to cover poor practice. I am a professional in another field, and I would expect to be held to account—I hope by my organisation, which could strike me off. We need to think this through and discuss this kind of separation of powers, which would not prevent there being some method of influence. I have recently been involved with the General Medical Council and find it to be a superb organisation, but that does not prevent it being questioned. I speak simply because I wanted to support the noble Earl and the noble Baroness, Lady Finlay, in testing and pressing the issue of what it means to be a professional. It does not mean that you are protected. Baroness Golding: I, too, support the amendment of the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay. The idea that any organisation should not be questioned is incredible, especially in a debate such as this. It is well known that paediatricians have had great difficulty with the General Medical Council. At a recent meeting of professional associations, 32 two members of the 14 May 2008 : Column GC356 Royal College of Paediatrics and Child Health tabled a vote of no confidence against what the General Medical Council was doing with regard to paediatricians. Something is very wrong when professional people feel that they have no confidence in an important body such as that. I intend to speak later on a number of related issues, but I wanted to say how strongly I support the amendment of the noble Earl, Lord Howe. Lord Walton of Detchant: This is Committee, so perhaps I may intervene again to say that that issue greatly concerns me, too, but it comes up later in the Bill, not here. The crucial issue here is that the amendments would overturn the principle of having one body that sets standards and another that has to look at the legal issue of whether those standards have been breached. It is for exactly that reason that I am not willing to support them. That principle, which was wrested from Janet Smith’s report and which defined the different responsibilities of the standard-setting body and the body that had to decide on sanctions, is exactly what would be breached if the amendments were approved. Baroness Golding: I reply to the noble Lord by saying that some of these decisions are taken to the High Court. If they could be prevented from moving to the High Court and being overturned, that would be really good. Baroness Thornton: I thank the Committee for a very interesting discussion. As Members have realised, Amendments Nos. 118 and 119 would require the guidance on possible sanctions to be published by the OHPA rather than the GMC, as is now the case. With the transfer of adjudication to the OHPA—I keep wanting to call it OPRA, I am sorry; I will get it right—it is important to safeguard the continuing consistency of sanctions decisions. There is a clear need for such guidance to continue to be published, and I am confident that it is right for the GMC to do that. Let me explain why we want to go down that route, and perhaps offer some comfort to the noble Baroness, Lady Tonge. I do not think that I need to defend the noble Earl, but he said that he wanted to explore the issue. To be on the medical register, practitioners will need to comply with the standards set by the GMC. The gold standard, as it was described by my noble friend, is Good Medical Practice. As that is the basis on which cases will be put to the OHPA, it is appropriate for the GMC to publish guidance on the interpretation of those standards and the sanctions that might be appropriate if a practitioner fell short of them. As I said, Amendments Nos. 118 and 119 provide for the OHPA, not the GMC, to produce that guidance. The Medical Defence Union has argued for the change proposed by the amendment on the grounds that requiring the OHPA to follow the GMC’s guidance would interfere with the independence of the OHPA. The Committee is quite right to test and discuss that. 14 May 2008 : Column GC357 I agree that panels must not be unduly influenced by the guidance published by the regulators on the appropriateness of sanctions. That is why the Bill says that the OHPA must take account of it. It does not say that the panel must follow the guidance if there is good reason to depart from it. I take this opportunity to state on the record that the OHPA’s panels will be perfectly at liberty to make their own decisions. Clearly, a panel cannot operate in isolation from Good Medical Practice and the GMC’s sanctions guidance, which is derived from it, but it will not be bound to impose a specific sanction in an individual case if it does not think that, in the particular circumstances of that case, such a sanction is appropriate. It is also important that guidance is general rather than unduly prescriptive. The noble Baroness, Lady Finlay, asked whether the GMC can question inappropriate guidance. Yes: if a decision is inappropriately harsh an individual has the right of appeal to the High Court. The right of appeal of the GMC is therefore to cover cases where the decision seemed appropriately lenient. The noble Baroness also asked about compliance with human rights. We carefully considered the issue of compliance with Article 6 and the council’s decision obtained by the Medical Defence Union. We do not believe that the guidance will fetter the discretion of the OHPA, nor is it incompatible with Article 6 of the European Convention on Human Rights. The Committee may be aware that the GMC is currently revising its Indicative Sanctions Guidance, and has just completed a public consultation, which closed on 9 May. 6 pm The draft guidance that the GMC has produced does not attempt to set out a tariff of the sanctions that the panels must apply in a particular kind of case, and I agree it is important that it does not do so. The draft guidance sets out a range of factors that may lead panels to conclude that it would be appropriate for the protection of the public to consider a particular sanction, such as the suspension of a doctor from practice. It makes clear that if the panel considers suspension to be the appropriate sanction, the length of that suspension is wholly within the discretion of the panel. It is entirely right that this sort of general guidance can be given by the body responsible for setting professional standards, and I do not believe that such guidance will compromise the independence of the adjudicator. The OHPA will obviously have to ensure that the way the guidance should be taken into account is covered in the training it gives its panel members and that its panels are making decisions in a fair and consistent manner. This is a key task for the OHPA board, and it will be the board’s job also to monitor it. I hope that, having heard that explanation, the noble Earl will feel able to withdraw his amendments. Earl Howe: This has been a good debate. I do not feel I need to apologise for having tabled the amendments. The debate has fulfilled its purposes because it has drawn out the underpinning logic and 14 May 2008 : Column GC358 arguments for the policy as well as some of the countervailing arguments. I am grateful particularly to the Minister for her reply. I say to the noble Lord, Lord Walton, that while he felt he had to come out in disagreement with me, I am not sure that he needed to do so. It is not necessary to disagree with a question, and a question is what I was asking. That question was neither unnecessary nor silly, and I am glad that the noble Baronesses, Lady Finlay, Lady Howarth and Lady Golding, felt able to come out in support of it. The Government’s policy was originally to have a clear separation between fact-finding and fault-finding, precisely because of public perceptions, a point powerfully made by the noble Baroness, Lady Howarth. If we were honest, we would admit that part of the deal between the GMC and the Government was that if a separate adjudication body were to be created—namely, the OHPA—that body should have a duty to take account of the GMC’s guidance, otherwise I doubt whether the GMC would ever have agreed to a separate body. I acknowledged in my earlier remarks that the deal that has been reached may well be a reasonable approach. Indeed, if the argument of the noble Lord, Lord Walton, were to be taken strictly, the OHPA would have been made to follow the guidance to the letter, but it will not be required to do so. The debate has probably run its course. I shall read carefully what the Minister has said, and it may be that we shall not have to return to this matter at a later stage. For the time being, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 119 not moved.] Baroness Thornton: I propose that the Committee adjourn for 10 minutes until 6.13 pm. Moved accordingly, and, on Question, Motion agreed to. [The Sitting was adjourned from 6.03 to 6.13 pm.] Baroness Thornton moved Amendment No. 120: Schedule 7, page 153, line 1, leave out “member State” and insert “relevant European State” The noble Baroness said: In moving Amendment No. 120, I shall speak also to Amendments Nos. 121, 155, 156, 158 and 159. These are minor, technical and consequential amendments on professional regulation. They include minor drafting corrections and some consequential and clarifying amendments arising from the creation of the OHPA. If Members of the Committee wish, I can take them through each of these amendments in detail. I beg to move. 6.15 pm Baroness Golding: If the person practising is an American, how is he or she covered by this provision, which covers European states? If an American doctor is over here who is affected by this provision, will he or she be sent back to America—or what will happen? 14 May 2008 : Column GC365 The other assurance I seek concerns the OHPA being able to make special provision. Enshrined in that should be the need to maintain a balance between professional and lay members, so that there could not be a skewed number. As the panel increases in size for complicated hearings—and I can see that it might have to do that—it should maintain a balance as it expands. Baroness Thornton: Perhaps I may give the noble Baroness a reassurance that there is a commitment to the balance of the panel. It must always be made up of an odd number in order to reach a decision, and that is why the quorum is three. The OHPA will set out in its rules, which the Bill requires it to consult on, how and when it will include extra panel members. We would expect the OHPA, in drawing up the rules, to take account of the issue raised by the noble Lord, Lord Walton, and others on the balance of the panel. Further, as I have said, the rules are also going to be subject to parliamentary scrutiny. Baroness Finlay of Llandaff: The last point I want the noble Baroness to respond to is simply that of the strong personality. It is a credit to the GMC’s training procedures for panel members that there have not been any appeals because of strong personalities. With those remarks, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 123 to 125 not moved.] Baroness Finlay of Llandaff moved Amendment No. 126: Clause 95, page 47, line 14, at end insert— “( ) All fitness to practice panel members shall be independent of any previous investigation or proceeding concerning either the professional under investigation or an incident relating to that professional.” The noble Baroness said: I will try to be brief in moving the amendment, because other noble Lords have important things to say on these matters. The panel members need to be independent of anything that has gone before. It is very easy to be biased at a subliminal level if you have been party to an investigation, proceedings or any type of inquiry that may surround any case. It becomes extremely difficult not to bring that bias into your thinking when you are in a hearing. Medicine is a very small world. The world of subspecialties is even smaller. There is gossip, there are rumours, and however much one attempts to be independent, it can be hard. I echo completely the words of the noble Baroness, Lady Cumberlege—transparency is critical. What I had hoped to do with this amendment was to ensure not only that we had transparency, but that we had independence from preconceived ideas or previous involvement in inquiries or proceedings. This matter will become particularly important when we move on later to consider standards of proof and the move from civil standards of proof to criminal standards of proof. However, this amendment is not the place for that argument. I beg to move. 14 May 2008 : Column GC366 Baroness Golding: I strongly support the amendment, which is very important indeed. I speak again about paediatricians. I wrote in March to the president of the GMC, who offered to help me to understand the way that the GMC works. I asked for an explanation regarding the inquiry on the fitness to practise of Professor Southall in the Sally Clark case. Following his reply, I said: “As I understand it Professor Tim David was the sole paediatric expert assisting the G.M.C. in both the prosecutions of Professor Southall. I also understand that Professor David was appointed by the Family Court to oversee the care of the remaining Clark child and supported Mr Clark’s position. He has also been retained to support the Clark family in their appeal against Mrs Clark’s criminal conviction. If this is correct how could Professor David act as an impartial paediatric expert in the prosecution of Professor Southall by the G.M.C.?”. I received a reply which said that it would be inappropriate for him to comment on Professor Southall’s case at this stage, as he has appealed to the High Court. He did appeal to the High Court and his appeal was accepted. That is one case where someone who was supposedly independent obviously was not. The General Medical Council also proposed to ask Dr Nicholson to act as the professional witness at the CMET trial of Professor Southall, Dr Spencer and Dr Samuel that was due to start this week. That was to happen even though Dr Nicholson had constantly made remarks criticising and attacking the research work at Stoke-on-Trent hospital, where the doctors worked. I understand that the trial for those three doctors has been delayed because Dr Nicholson was replaced at the last moment. That makes me wonder why. Why should this kind of thing be happening, whereby doctors’ livelihoods are put at risk by people, who are obviously opposed to them, giving evidence as recognised witnesses to the three people sitting on the tribunal at the GMC? What kind of justice is that? We ask for justice for the patients. Where is the justice for the doctors? Baroness Jones of Whitchurch: I want to make a quick comment, although I cannot comment on the case that has just been raised, because I do not know the details. I was a bit bemused by the amendment, because when we are talking about fitness-to-practise panel members referred to in the amendment—who are different from the specialist advisers who may give advice—there is a requirement for them to be independent. Indeed, we all have to pledge that before a case starts. That may need to be written in the document, but it is certainly the case at the moment. There may be a separate debate about professional clinical and legal advisers and the extent to which they have been involved in a previous role, but the panel members themselves are guaranteed to be independent. That is my understanding. 6.45 pm Baroness Golding: That has not always been the case. People who have spoken out against what has happened have previously been panel members. 14 May 2008 : Column GC367 Baroness Thornton: Amendment No. 126 seeks to ensure that fitness-to-practise panel members have not been involved in previous investigations or proceedings related to the professional before them. That is an important principle and one well established with the current regulators. On my noble friend Lady Golding’s detailed questions on the case she mentioned, it is subject to ongoing proceedings, so it would be inappropriate for me to comment. The current GMC rules on the composition of panels specifically provide that no panellist shall act as a panellist for the substantive hearing of a case that he has previously considered or adjudicated on in any other capacity. That ensures that panel members who are involved in the investigation process are not called on to take part in the adjudication process, and that panel members who have heard a case against a practitioner do not hear any future cases against him or her. As I said, that is absolutely right and I agree with the general spirit of the amendment tabled by the noble Baroness, Lady Finlay. However, I remind the Committee that the OHPA will adjudicate only on fitness-to-practise cases. It will take no part in the investigation process. There is also a specific problem with the amendment as drafted. It is currently recognised that review hearings following adjudication can benefit from the inclusion of an original panel member, and the GMC rules allow that as an exception to the general rule that I outlined. Amendment No. 126 would prevent that, which would mean that it would not be possible to have any continuity between adjudication and any review hearing. Although that is a specific reason why I am unable to accept the amendment, I think that it also demonstrates more generally why it is important to give the OHPA the flexibility to set out the detail of its processes in rules, rather than in primary legislation. Clause 95(3) of the Bill allows for rules to make further provision about the selection of panels in relation to any proceedings. That will allow the OHPA to set out how panel members should be selected so that any conflicts of interest are avoided. We are creating the OHPA within an enabling framework. We must be careful to resist the temptation to specify too much detail and make too many decisions for the organisation now. Given that we are setting up the OHPA in order to create a proper separation between investigation and adjudication, it is vital that its rules reflect the crucial principle of independence and separation. We must, however, allow the OHPA, as the experts, to decide exactly how to do this. There is a requirement for full consultation on its draft rules. I am completely confident that noble Lords who have participated here and the many organisations which have already played a part in the framing of this Bill will ensure that its rules are robust and fair. Parliamentary scrutiny via the negative resolution procedure will also provide a backstop. On that basis, I hope that the noble Baroness, Lady Finlay, is sufficiently reassured to withdraw her amendment. Baroness Finlay of Llandaff: I am most reassured by the Minister’s words. I am especially grateful to the noble Baroness, Lady Golding, for her strong support 14 May 2008 : Column GC368 and for having brought such specific examples to the attention of the Committee, because they are very important. I put on record that she has done great service to the probity of investigation of doctors by her investigative inquiries into the matters that she has brought before us. As the noble Baroness, Lady Jones, said, I recognise that the fitness-to-practise panel members have to be independent at the moment; but it was so that we did not revert to the previous situation that I wanted to write that into the Bill. I hope that the Minister's words mean that it will be in the guidance to the panel that they must be independent. Baroness Thornton: Actually, it will be in rules, not guidance. Baroness Finlay of Llandaff: I am grateful for that, and that is more reassuring still. I have some slight concerns about putting a panel member forward from the investigative panel onto the adjudication panel, because I would prefer that the adjudication panel can call a panel member to give them evidence, to explain their thinking, to explain what went on and answer questions about the investigative hearing. I have a little concern that we fudge that clear separation by having a panel member go from one panel to the other, particularly given the small size of the panels. Baroness Thornton: Perhaps I may clarify that point. I said that the specific issue about this was about the review of decisions, not going forward from one panel to another, but being able to participate in a review of a decision that a panel had taken. Baroness Finlay of Llandaff: I am grateful to the noble Baroness for clarifying that. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Earl Howe moved Amendment No. 127: Clause 95, page 47, line 18, leave out “in specified circumstances” The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 128. Both are probing amendments, and they bring us to an issue that has prompted a good deal of debate both inside and outside Parliament: whether the chair of a fitness to practise adjudication panel should on every occasion be legally qualified. At the moment, the Bill specifies that the chair may be legally qualified and furthermore that rules may provide for pilot schemes under which legally qualified chairs are or are not selected for certain sorts of proceedings. I find it difficult to envisage how pilot schemes will work in practice. How, while ensuring fairness and consistency between cases, do you select which cases are going to be chaired by a lawyer and which are not? You could not do it by random selection, because that would open up the prospect of legal challenge. Will it be done by agreement between the parties? If so, one has to ask what doctor would agree
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