HC Deb 07 May 1993 vol 224 cc419-24
Mr. Moss

I beg to move amendment No. 59, in page 17, line 24, after 'section', insert 'or by virtue of a recommendation under section 30(7)(c)'.

Mr. Deputy Speaker

With this, it will be convenient to consider the following amendments: No. 60, in page 17, line 39, after 'section', insert 'or by virtue of a recommendation under section 30(7)(c)'.

No. 61, in page 18, line 42, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c).'

No. 62, in clause 23, page 19, line 2, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

No. 63, in clause 23 page 19, line 12, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

Mr. Moss

Clauses 22 and 23 empower the professional conduct committee and the health committee to make a conditions of practise order, or a suspension order in cases where they consider that an allegation made against an osteopath to be well founded. They also enable each committee to review an order while it is still current and to consider whether it should be renewed or, within certain limits, replaced by a different order, or otherwise modified or even revoked.

The wording of each clause, however, is tightly drafted. In each case, it limits the committee's powers of review to orders, in the case of the professional conduct committee, made under clause 22 and, in the case of the health committee, to those made under clause 23. Under normal circumstances, that is unlikely to create any difficulty. However, in cases where an appeal had been made—for example, to the appeal tribunal against a decision of the health committee—the order in force would not, strictly speaking, be one made under clause 23 but under what is currently new clause 3. The same point would also apply to orders made on appeal to Her Majesty in Council under clause 30.

The question has been raised, therefore, whether the professional conduct committee and the health committee would have the power to review orders made on appeal under the provisions of another clause as to the way that they could review those that they had made. They ought to have that power. It was always our intention that they should have that power.

The amendments, therefore, remove any uncertainty about the position by including a reference to those orders made on appeal under the provisions of other specific clauses.

Mr. Quentin Davies

Will my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) consider carefully a point that is not covered by the amendments? I have referred to equity for those who are accused of an offence. They may be accused of having obtained their registration improperly or fraudulently, they may be accused of having subsequently committed a criminal offence or they may be accused of having subsequently been guilty of professional misconduct. The procedures set out in clause 22, in clause 10 and in clause 21 would then begin, depending on which particular 'committee was handling the case.

My hon. Friend has told the House that the Bill does not provide for compensation if a practitioner is suspended and it is then found that there is no ground for his suspension. There may have been no merit in the complaint, but the practitioner may have lost considerably in the meantime. It is unsatisfactory that there should be no time frame within which the procedures set out in clause 22 must be completed. It would be possible for the registrar under clause 10 and for the professional conduct committee under clause 22 to take any amount of time to consider such matters.

The process could go on for weeks, for months or for years. Even if the practitioner against whom the procedure was initiated were wholly guiltless, he might have been deprived of the right to practise his profession in the interim, possibly for years, and he might never be able to resume his profession although it had been found that there was no substance in the original complaints against him.

My hon. Friend the Member for Cambridgeshire, North-East has said several times that he intends that the quasi-judicial disciplinary procedures in the Bill should observe the principles of natural justice. I know that my hon. Friend is sincere in that intention and that there are many reflections of that principle in the Bill. Will he reflect on the point that there is an important dimension of which the Bill does not take account? If the amendment is agreed to, the Bill, for the best possible motives and in the highest-minded fashion, will have laid the basis for some appalling miscarriages of justice, not because the procedures will not be observed and not because the people who are involved in the committees intend that there should be any injustice, but simply because investigations will drag on.

The main priority of practising osteopaths will not be to spend time on the professional conduct committee. There will always be the temptation to suspend investigations because of Christmas or Easter. The procedure will drag on and a wholly innocent osteopath who has had an appalling cloud over him for a long time—he may have been suspended by the registrar under clause 10 and he will not have been able to practise in the interim—will lose a lot of money. There will be no redress for the consequential loss of income.

The osteopath will find that he cannot refer to the Bill and say, "Look, the procedures laid down have a time scale attached to them, so I insist that justice is done and that the matter is brought to a conclusion one way or another within that time scale." The absence of a time scale is in conflict with my hon. Friend's laudable intention that justice should be done and that those who are subsequently proved to be completely blameless and against whom unjustified complaints have been made are not damaged.

Sir Nicholas Bonsor

I entirely agree with my hon. Friend the Member for Stamford and Spalding (Mr. Davies). I served on the investigations committee of the Lloyd's council for two or three years and I am well aware how long investigations can drag on despite the best intentions of all involved to make them as speedy as possible. In addition to the difficulties mentioned by my hon. Friend, there is the substantial difficulty of obtaining evidence from all the witnesses who may wish to give evidence, of finding out who they are and of ensuring that they have an opportunity to present their case to the investigations committee. These things tend to take a great deal of time and unless substantial incentives or penalties are attached—I share my hon. Friend's concern—people could be grossly out of pocket and badly treated by an investigation into a complaint that ultimately proved groundless or ultimately proved to have been started maliciously by someone who had some reason to wish the practitioner concerned ill.

Mr. Quentin Davies

I am grateful for my hon. Friend's support. Does he agree that there is an inter-relationship between compensation for loss of revenue as a result of a complaint that is subsequently deemed to have been quite unjustified and uncalled for—because the practitioner had committed no offence and because there was no impropriety in the way in which he was registered—and the time scale, to which we attach great importance? If there was provision for compensation, the osteopath who was suspended would find that his claim for compensation would increase with the time taken by the investigation because he would lose more patients and more revenue. The bill would clock up. Would that not act as a major inducement for those carrying out the investigation on behalf of the general council, whether the registrar and his staff or the members serving on the professional conduct committee, to get on with the investigation and to ensure that there were no unreasonable delays in the investigations and the conclusions?

Sir Nicholas Bonsor

I am grateful to my hon. Friend for expanding on the theme. He is absolutely right to say that a provision should be inserted to safeguard the interests of the osteopaths.

Lady Olga Maitland

Could my hon. Friend draw a parallel with any other professional body and with how it deals with the problem? The General Medical Council might be one such example.

Sir Nicholas Bonsor

I am afraid that my hon. Friend has asked the wrong person. That question could be addressed to my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) or to the Minister. I cannot draw a parallel with the General Medical Council because I am not sure how it deals with this problem.

Ms Primarolo

Exactly.

Sir Nicholas Bonsor

The hon. Lady says, "Exactly". None the less, the point remains a matter of concern. My hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) has asked a valuable question and I hope that we shall be given an answer by someone who is able to do so.

My detailed concern relates to the consequence of agreeing to the amendment. Under clause 30, which deals with appeals against the decisions of the professional conduct committee or of the health committee, the way in which the Judicial Committee of the Privy Council will deal with appeals is set out in subsection (7). It says, "Without prejudice to the application of that Act, on an appeal under this section to Her Majesty in Council, the Judicial Committee may in their report recommend to Her Majesty in Council—

  1. (a) that the appeal be dismissed;
  2. (b) that the appeal be allowed and the decision questioned by the appeal quashed;
  3. (c) "—
this is the point with which we are concerned— that such other decision as the Professional Conduct Committee or (as the case may be) Health Committee could have made be substituted for the decision questioned by the appeal; or
  1. (d) that the case be remitted to the Committee concerned to be disposed of in accordance with the directions of the Judicial Committee."
 Let us suppose that the Judicial Committee decided to adopt a course under subsection (7)(c) and that it substituted what it considered to be the appropriate response to the allegation against which the appeal was formed. The Judicial Committee of the Privy Council decides what is the appropriate penalty to impose or the appropriate step to take.

Once that stage has been reached under amendment No. 59, clause 22(6) will be affected. If unamended, that subsection will deal only with decisions made in the first instance by the professional conduct committee or the health committee. When those committees reach a conclusion, At any time while a conditions of practice order is in force under this section, the Committee may (whether or not of its own motion)—

  1. (a) extend, or further extend, the period for which the order has effect;
  2. (b) revoke or vary any of the conditions;
  3. (c) require the osteopath concerned to pass a test of competence specfied by the Committee;
  4. (d) reduce the period for which the order has effect; or
  5. (e) revoke the order."
It is clear that the amendment, if passed, will undermine the purpose of taking appeals to the committee of the Privy Council. If that committee then substitutes an order that, in its view, should have been made by the health committee or the professional conduct committee in the first place, it can override, reverse or otherwise interfere with the original decision.

11.30 am

The amendment cannot possibly have been intended so to undermine the value of the process of appealing to the committee of the Privy Council. I urge my hon. Friend to give careful consideration to the consequences of his proposal and to ensure that it is further amended to avoid those consequences. The matter is complicated and I do not expect an immediate response—which, in any case, would not be possible under the rules of the House. However, I urge my hon. Friend to ensure that the amendment is itself amended—although I appreciate the merit of what it attempts to achieve. Its drafting is clearly deficient.

Mr. Moss

I shall attempt to answer some of the points raised by my hon. Friends the Members for Upminster (Sir N. Bonsor) and for Stamford and Spalding (Mr. Davies).

The issue of compensation has been raised twice. Let me repeat what I said earlier: the Bill provides no grounds for compensation at any stage. However, in all other statutory regulation schemes affecting the health professions there is also no compensation clause. The insertion of such a clause in this Bill would be a first.

My hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) asked about the General Medical Council. I suggest that my hon. Friend the Member for Stamford and Spalding consult his father, who will tell him that no compensation scheme is paid under the GMC's procedures. I would have expected my hon. Friend the Member for Stamford and Spalding to know that.

Mr. Quentin Davies

rose—

Sir Nicholas Bonsor

Before my hon. Friend leaps to refute my scurrilous allegation of a shortage of knowledge to which I myself am happy to admit, let me explain that the crux of my hon. Friend's point—the part that I was endorsing—related not to a desire for a compensation clause, but to a desire for a mechanism limiting the time that could be taken.

Mr. Moss

I was coming to that. Clause 24(4) states: Before making an interim suspension order, the Committee shall give the osteopath in question an opportunity to appear before it and tc argue his case against the making of the proposed order. Under subsection (5), At any such hearing the osteopath shall be entitled to be legally represented. There is an appeal procedure, again with legal representation. Under clause 31(3), The order shall specify the period of the suspension, which shall not exceed two months beginning with the date on which the order is made.

Amendment agreed to.

Amendments made: No. 60, in page 17, line 39, after 'section', insert 'or by virtue of a recommendation under section 30(7)(c)'.

No. 61, in page 18, line 42, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

No. 62, in page 19, line 2, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.

No. 63, in page 19, line 12, after 'section', insert 'or under section (Appeals against decisions of the Health Committee) or by virtue of a recommendation under section 30(7)(c)'.—[Mr. Moss.]

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