APPEALS AGAINST DECISIONS OF THE HEALTH COMMITTEE (Hansard, 7 May 1993)

HC Deb 07 May 1993 vol 224 cc395-400 395

§ '.—(1) Any person with respect to whom a decision of the Health Committee is made under section 23 may, before the end of the period of 28 days beginning with the date on which notification of the decision is sent to him, appeal against it in accordance with the provisions of this section.

§ (2) An appeal under subsection (1) shall lie to an appeal tribunal, consisting of a chairman and two other members, established for the purposes of the appeal in accordance with rules made by the General Council for the purposes of this section.

§ (3) The General Council shall make rules as to the procedure to be followed by an appeal tribunal hearing an appeal under this section.

§ (4) The rules may, in particular, make similar provision to that made by virtue of section 26(2)(d), (f), (g), (h), (i) or (j).

§ (5) No decision against which an appeal may be made under this section shall have effect before—

(a) the expiry of the period within which such an appeal may be made; or
(b) the appeal is withdrawn or otherwise disposed of.

§ (6) The chairman of an appeal tribunal—

(a) shall be selected in accordance with rules made by the General Council; and
(b) shall be qualified as mentioned in section 27(4).

§ (7) Each of the other two members of an appeal tribunal shall be selected in accordance with rules made by the General Council—

(a) one of them being a fully registered osteopath, and
(b) the other being a registered medical practitioner.

§ (8) The rules may not provide for the selection of any member of an appeal tribunal to be by the General Council.

§ (9) The chairman of an appeal tribunal shall appoint a person approved by the members of the tribunal to act as clerk of the tribunal.

§ (10) Subject to any provision made by the rules, an appeal tribunal shall sit in public and shall sit—

(a) in Northern Ireland, in the case of an osteopath whose registered address is in Northern Ireland;
(b) in Scotland, in the case of an osteopath whose registered address is in Scotland; and
(c) in England and Wales, in any other case.

§ (11) On any appeal under this section—

(a) the appeal shall be by way of a rehearing of the case;
(b) the General Council shall be the respondent; and
(c) the tribunal hearing the appeal shall have power to make any decision which the Health Committee had power to make under section 23.

§ (12) An appeal tribunal shall have the same powers of interim suspension as the Health Committee has under section 24(1)(b) and that section shall have effect in relation to suspension orders made by appeal tribunals with the necessary modifications.

§ (13) No person shall be required by any rules made under this section to give any evidence or produce any document or other material at a hearing held by an appeal tribunal which he could not be compelled to give or produce in civil proceedings in any court in that part of the United Kingdom in which the hearing takes place.

§ (14) An appeal tribunal shall have power to award costs.

§ (15) Any expenses reasonably incurred by a tribunal, including any incurred in connection with the appointment of a clerk, shall be met by the General Council.'.—[Mr. Moss]

§ Brought up, and read the First time.

§ Mr. Moss
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker
I understand that with this it will be convenient to discuss also the following amendments: No. 18, in clause 30, page 24, line 12 leave out 'of the Health Committee is made under section 23' and insert 396 'is made by an appeal tribunal hearing an appeal under section (Appeals against decisions of the Health Committee)'.

§ No. 19 in page 24, line 21, at end insert— '() An appeal under subsection (1)(b) may only be on a point of law.

§ No. 20, in page 24, line 24, leave out 'may appear as' and insert 'shall be the'.

§ No. 21, in page 24, line 39, after 'Committee' insert 'or appeal tribunal'.

§ No. 22, in page 24, line 42, leave out subsection (8).

§ No. 23, in page 25, line 7, leave out from 'by' to 'rules', in line 8, and insert

§ '—

(a) the Professional Conduct Committee,
(b) the Health Committee, or
(c) an appeal tribunal hearing an appeal under section (Appeals against decisions of the Health Committee), under'.

§ No. 24, in page 25, line 8, after '(h.)' insert 'or under any corresponding rules made by virtue of section (Appeals against decisions of the Health Committee) (4)'.

§ No. 28, in page 26, line 20, leave out 'or 17' and insert '17 or (Appeals against decisions of the Health Committee)'.

§ Mr. Moss
The central purpose of the Bill is to establish a statutory registration system for osteopaths to provide members of the public with the assurance that, in the future, anyone calling himself or herself an osteopath, is adequately trained, properly qualified and fully competent to practise osteopathy, and that their professional practice is regulated by effective methods of control.
In addition to providing those safeguards for the public, it is equally important that the statutory scheme protects the human rights of osteopaths and provides them with an appeals system which is firmly rooted in the principles of natural justice.
As currently drafted, the Bill provides an aggrieved osteopath with a right of appeal against decisions of the professional conduct committee and health committee to Her Majesty in Council—that is, to the Judicial Committee of the Privy Council. I remind the House that those two committees are the fitness to practise committees with powers to suspend an osteopath's registration, impose conditions on his or her continuing to practise or, in the case of the professional conduct committee, to erase his or her name from the register.
Providing appeals against decisions of the health committee on matters of fact as well as of law would be a unique feature of the osteopaths' scheme among those governing other health professionals. The Judicial Committee is, however, concerned that appeals on matters of fact are liable to raise complicated issues of technical evidence on someone's medical condition and their consequent ability to practise which would fall outside the scope of its competence to determine. Therefore, new clause 3 seeks to provide an alternative route for appeals against decisions of the health committee.
Under the provisions of new clause 3, an appeal on either a matter of fact or of law would lie to an appeal tribunal. A further right of appeal against a decision of that tribunal on a point of law only would lie to Her Majesty in Council. That would be in line with the practice applying to the other health professionals.
The appeal tribunal would comprise a legally qualified chairman—a senior solicitor or barrister—a fully registered osteopath and a registered medical practitioner, all of whom would be appointed in accordance with rules drawn up by the general council and approved by the Privy 397 Council. In order to ensure the independence of the appeal tribunal from the general council, the rules must specifically prohibit the general council from selecting any member of the appeal tribunal.
A different appeal tribunal will be constituted for each appeal and, subject to any provisions made by the rules, would sit in Northern Ireland in cases where the appeal has been by an osteopath whose registered address is in Northern Ireland, in Scotland if his or her address is in Scotland, and in England or Wales in any other case. Subject again to any provision made by rules, the appeal tribunal will sit in public.
Hon. Members will no doubt have noticed that that is in contrast with the provisions of amendment No. 17, which I shall discuss later. We shall provide for hearings of the health committee to be held in private. That difference does not betray a contradiction in policy. In the first instance, an appeal under this new clause would have been initiated by the osteopath himself rather than by another party, as would be the case with the original allegation.
Also, the provisions have been drafted with an eye on the terms of article 6.1 of the European convention on human rights, which states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The appeal to the appeal tribunal would be by way of a rehearing at which the general council would be the respondent. The appeal tribunal would possess the same powers as the health committee to require a witness to attend the hearing and give evidence or produce documents. Those powers would be backed up by the provisions of clause 31, making failure to comply a criminal offence.
The appeal tribunal would be empowered to make any decision that the health committee would have the power to make under clause 23. In the same way, the appeal tribunal would have comparable powers of interim suspension, as in relation to the health committee by virtue of clause 24(1)(b).
The other amendments in this group are the consequential amendments required to clauses 30, 31 and 35. In particular, they would provide for the rules to be prepared by the general council under this clause to be subject not only to approval by the Privy Council but to the negative parliamentary procedures. They also provide for the general council to be the respondent to any further appeal made to the Judicial Committee of the Privy Council on a point of law.
Such hearings would normally be adversarial. However, as currently drafted, the Bill provides only that the general council may appear as the respondent. It is now felt, however, that the general council should always be the respondent. By making the general council the respondent, the provisions in clause 30(8) relating to the apportioning of costs are not required. The general council would automatically be a party to the hearing and could therefore be liable to incur the costs of the parties.

§ Sir Nicholas Bonsor (Upminster)
I welcome the provisions that my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has introduced, and I take his point in regard to the reluctance of the Judicial Committee of the Privy Council to be faced with 398 complicated matters of medical fact in which it would not feel itself qualified to make a decision. Thus, it is correct to limit the right of appeal to the Judicial Committee to points of law. There are, however, one or two detailed matters in regard to new clause 3 to which I draw the attention of the House and in particular ask my hon. Friend to address to see whether further amendments could be made at a later stage of the Bill's process.
The first point that worries me is that the general council has virtually unfettered powers to make rules. Therefore, it is very difficult for the House to consider new clause 3 and to satisfy itself that the rules of justice—natural justice—will be fully carried out when the general council makes decisions over which it has no control.
I am happy that the appeal tribunal should be chaired by a lawyer. It is terribly important—I speak as somebody who practised at the Bar—that people with legal qualifications chair such committees. There is always a temptation to denigrate the legal profession and to underestimate the value of putting lawyers on lay tribunals on which their advice on what is fair, right and in accordance with the concepts of our law can be extremely useful.
I am pleased that the chairman is to be a lawyer, but I am a little less happy that the rules are so clear on what both the other members of the tribunal have to be. There has to be one osteopath, and one registered medical practitioner. It might be appropriate to have somebody with a different background, interest and knowledge on the appeal tribunal in circumstances which I cannot currently guess but which might arise.
My hon. Friend will take the point that the reason why he is leaving the rules so general for the committee to consider later is precisely that, and to fetter the committee in that way on that specific issue seems to be unwise and contrary to the general thinking behind the clause.
The second point, which is possibly more serious, is that new clause 3(4) states: The rules may, in particular, make similar provision to that made by virtue of section 26. There are then many sub-paragraphs. In clause 26, the position is different. It deals with the setting up of the health committee and the rules that the health committee shall decide on. It states: The rules shall, in particular, include provision". There we have the health committee being bound to make rules along the lines of that clause, but that compulsion is removed when it comes to the appeal committee, which has discretion whether to follow the rules laid down in clause 26.
What concerns me in particular is that clause 26(2)(d) states: The rules shall, in particular, include provision … entitling the osteopath to be legally represented at any hearing in respect of the allegation". If I read that clause correctly—I stand to be corrected if somebody can so persuade me—what is substituted for that in new clause 3 is that the rules may, in particular, include a provision entitling the osteopath to be legally represented at any hearing. If that reading is correct, it would, at least in theory, enable the appeal tribunal to refuse legal representation to an osteopath who has appealed to it.
I cannot believe that that is the intention behind the drafting of the Bill, and I should be grateful if my hon. Friend would confirm that, if I am right, that point will be 399 rectified. It would be a most unfortunate lacuna if that went on to the statute book without its being intended to have the effect which I believe it has.
More generally, I very much welcome the setting up of the appeal tribunal. I am sure that it will be invaluable and I am particularly pleased that it is specifically set down that the appeal shall be by way of a rehearing of a case. Therefore, there can be no danger of an osteopath being fobbed off with an appeal that would be taken by way of written evidence, for example, or would look only at the evidence that had been presented to the original hearing. I am confident that the appeal tribunal will offer justice to osteopaths, with the provisions that I have already expressed as being my doubts about it.
I do not need to trouble the House any longer on the new clause, provided that my hon. Friend, who is now consulting his advisers, can satisfy me on those points.

§ Mr. Sackville
I formally signal the Government's support for the new clause and recognise the co-operation and support of the medical and legal professions, which have been extremely helpful in drawing up the new clause.

§ Lady Olga Maitland (Sutton and Cheam)
I give a warm welcome to the new clause and express my support for it. A rigorous procedure for the appeal system is essential especially as we are giving the osteopathic profession official status. It will certainly give confidence to patients to know that no stone will be left unturned in the system that will determine the fitness of osteopaths to return to the profession.

§ 10 am

§ Mr. Moss
I should like to respond to my hon. Friend the Member for Upminster (Sir N. Bonsor). His first point was that the council could make its own rules. He felt that that was to give it perhaps a little too much licence. I remind him that any rules which the council may come up with will be subject to the approval of the Privy Council and, of course, as a result may be subject to parliamentary scrutiny.
My hon. Friend referred to the composition of the tribunal. Taking first his point about the chair being a lawyer, I am glad that he declared an interest. But he seemed to speak most of the time about the interests of his profession. We believe that it is extremely important that a lawyer should chair the tribunal. We also believe that the inclusion of an osteopath and a medical adviser is vital. The osteopath could comment on professional matters of osteopathy and the running of the practice by the osteopath. The doctor could advise on health matters. Let us face it: the appeal will be to a health tribunal on health matters.
My hon. Friend raised the difference between the wording "may" and "shall" in terms of making the rules. The general council will be required to make rules and the Privy Council will scrutinise them. It is difficult to believe that the Privy Council would not take the important points that my hon. Friend raised into account. In no circumstances would it countenance an individual not having legal representation on any of the investigatory committees of tribunals.

§ Question put and agreed to.

§ Clause read a Second time, and added to the Bill.