HC Deb 07 May 1993 vol 224 cc411-6
Mr. Moss

I beg to move amendment No. 6, in page 8, line 6, leave out from 'The' to 'at', in line 12, and insert— 'Registrar shall investigate any allegation that an entry in the register has been fraudulently procured or incorrectly made and report on the result of his investigation to the General Council. (1A) An entry which has been restored to the register under section 6(5) or 8, or under rules made by virtue of section 8(8), may be treated for the purposes of this section as having been fraudulently procured or incorrectly made if any previous entry from which the restored entry is derived was fraudulently procured or incorrectly made. (2) The Registrar may'.

Mr. Deputy Speaker

With this we may consider the following amendments: No. 7, in page 8, line 13, leave out 'to'.

No. 8, in page 8, line 16, leave out from beginning to end of line 17 and insert— The General Council shall by rules make provision, in relation to any case where the Registrar proposes to suspend an osteopath's registration under subsection (2)—'.

No. 9, in page 8, line 23, leave out 'on the matter'.

No. 10, in page 8, line 24, leave out 'an entry in the register' and insert 'the entry in question'.

No. 11, in page 8, line 38, leave out 'may appear as' and insert 'shall be'.

No. 12, in page 9, line 3, leave out subsection (11).

No. 13, in page 9, line 5, at end insert— '() The General Council may by rules make such further provision as it considers appropriate with respect to suspensions under subsection (2), including in particular provision as to their duration.'.

Mr. Moss

The amendments seek to streamline the provisions of clause 10. They will do that by giving the registrar the direct power and responsibility to investigate an allegation that an entry in the register has been incorrectly made or fraudulently obtained. As drafted, the Bill provides for such power and responsiblity to be conferred on the general council, with an ability for the council to make laws for these to be exercised by the registrar.

This is an important change, but it is consistent with other themes in the Bill. For example, it will be the registrar who will be charged under clause 2 with the statutory duty of establishing and maintaining the register of osteopaths. Therefore, it would not be unreasonable for the registrar to be able to initiate action to be satisfied about the correctness of the entries in the register. The amendments will achieve that purpose.

The resulting change should also mean that any investigation will be carried out far more speedily, as the registrar will be able to carry out an immediate investigation into such an allegation without having to wait for the general council to meet and consider the matter first. That would avoid any unnecessary delay which might have arisen if the general council's periodic meetings turn out to be fairly infrequent.

When the registrar has completed his investigation, he is to report on the matter to the general council. If, having considered the registrar's report, the general council is satisfied that the entry in question has been incorrectly made or fraudulently obtained, it may order the registrar to remove it. The osteopath would have a right of appeal against that decision to the Judicial Committee of the Privy Council.

As part of the package, the registrar would have the authority to order the immediate suspension of an osteopath's registration, pending investigation, where he is satisfied that such action is necessary to protect members of the public. That would place the registrar of the General Osteopathic Council in a unique position vis-a-vis the registrars of similar schemes for health care professionals.

The House will see, however, that the registrar is not given a completely free hand to cut a swathe through the names of the osteopaths appearing in the register. He will be permitted to take that action only when he is satisfied that it is justified in terms of protecting the public. His powers will also be contained within the limits prescribed by the rules to ensure that, in instances where he proposes to exercise his powers—which must, by definition, be before he imposes such an order—the practitioner in question will be given an opportunity to appear in front of the investigating committee supported by legal representation, if he so chooses, to argue his case against suspension.

That is an important provision. In ensuring that the statutory scheme provides protection for the public, it is also important to ensure that the human rights of the osteopath are protected. In that way, the public and the profession will be able to have the utmost confidence in the scheme.

It may at first sight seem a little odd for the practitioners' objections to the making of a suspension order to be heard by the investigating committee. The reason for this decision is that the investigating committee will already have in place the machinery, set out in clause 21, to hold such hearings. The registrar is required to report the outcome of his investigations to the general council. If, having considered his report, the general council is satisfied that any entry in the register has been incorrectly made or fraudulently obtained, it may order the registrar to remove it.

The osteopath has a right of appeal to the Judicial Committee of the Privy Council against a decision to remove his name from the register. Such hearings would normally be adversarial. As drafted, the Bill provides only that the general council may appear as respondent. In keeping with what I said earlier, we now feel that the general council ought always to be the respondent, if only for this simple reason: if it is not, who is?

By making the general council a respondent, the provisions in clause 10(11) 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. The amendments, and the clause, further strengthen the status of the statutory register. The provisions also ensure that they apply to an entry that has been restored to the register by virtue of clause 6(5)—which enables an osteopath who has failed to renew his registration under clause 8, which deals with the registering of an osteopath who has been struck of—if the original entry was incorrectly made or fraudulently obtained.

Lady Olga Maitland

I support the amendments. It is important that the public have a right to be protected from fraudulent entries that have got on to the register. It is also important that we should take into account all the different kinds of abuses of the profession that might be perpetrated. I take it that this refers to criminal offences, to fraud and to the breakdown of discipline between the osteopath and the patient, particularly when that discipline is a matter of trust and that trust has been abused, especially through very personal relationships. When all those factors are taken into account, and we bear in mind the worthless qualifications that can be used, it is essential that the House should agree to the amendments.

Mr. Bowis

The amendments incoprporate the Upminster doctrine by removing a "may" and inserting a "shall". No doubt my hon. Friend the Member for Upminster (Sir N. Bonsor) will welcome that. I am sure that he is right in that case. I am equally certain that the amendment, which tightens that process up, is correct. If we are to have a properly regulated profession, there must be no question of anyone being able fraudulently to get on to the list, which the public ought to come to trust. That is particularly the case if the fraud applies to any claims of professional qualifications, quite apart from any criminal offences that are deemed to be relevant.

However, I seek the reassurance of my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) on the other side of the coin. It is possible that the clause will provide opportunities for those who have professional jealousies to make frivolous or mischievous claims against a properly qualified person. I am sure that the procedures will ensure that such claims are dismissed, but I seek my hon. Friend's assurance that speed will be of the essence, because somebody's career and professional standing could be at risk if such a claim were made against him by a professional rival.

The clause does not contain a speed element. I hope that there will be a quick look at each case by the registrar to see whether it should be considered further—a sort of procurator fiscal look at the case. If there is a case to be answered, it should be investigated fully and properly. However, that initial speed is necessary.

Mr. Quentin Davies

I have some doubts about the circumstances in which the registrar would intervene, as set out in the clause and the amendments to it. Some of the circumstances are defined in clause 20, which speaks of conduct which falls short of the standard required of a registered osteopath". However, as far as I can see from reading through the Bill, such conduct is nowhere defined. In other words, there is an extraordinarily wide area in which the registrar could say that the osteopath had been guilty of conduct falling below the required standard. Could my hon. Friend give us some illustrations as to what conduct that might be? For example, would it include allegations about drunkenness or sexual misconduct? What does my hon. Friend envisage are standards of conduct, not involving a relevant criminal offence, that would require a registrar to suspend an osteopath?

Mr. Moss

The comments by my hon. Friend the Member for Battersea (Mr. Bowis) go to the heart of the amendments. We have tabled them in an attempt to streamline the process set out in clause 10. He may feel that, because we have not set a time limit in law, we have not gone far enough, but I assure him that the purpose of the amendments is to make sure that any allegation of the kind that he talked about, certainly those involving an entry on the register, can be picked up immediately by the registrar and acted on, rather than those involved having to wait, perhaps for a meeting of the general council to come round, before the process of investigation can be activated. We put the registrar at the heart of the preliminary look at what is, after all, a key element of the Bill—the accuracy of the entry in the register.

Sir Nicholas Bonsor

I take my hon. Friend's point about the investigation by the registrar and about increasing the speed with which such allegations can be dealt with. I welcome the change that the amendment will make. However, will he readdress the question that I put to him a little earlier about the health committee? I have now read clause 20 carefully. Nothing in it suggests that only serious impairment of the ability to practise as an osteopath because of a physical and mental condition should lead to a referral to the health committee. Anything under section 20 can be referred to the health committee and that goes against the desire to speed up investigations.

Mr. Moss

I shall first answer the question put by my hon. Friend the Member for Stamford and Spalding (Mr. Davies), who asked about misconduct that would necessarily result in referral to one of the committees. We are dealing with amendments to clause 10, which relates only to entries fraudulently obtained and not to disciplinary offences, which come under clause 20, to which my hon. Friend the Member for Upminster (Sir N. Bonsor) referred. Clause 20(12) says: Where the Investigating Committee concludes that there is a case to answer, it shall …

  1. (b) refer the allegation as formulated by the investigating Committee—
    1. (i) to the Health Committee, in the case of an allegation of a kind mentioned in subsection (1)(d)".
Therefore, it is extremely specific on what can be referred to the health committee.

11 am

Sir Nicholas Bonsor

Unless I have grossly mistaken the position, there is nothing in clause 20 to prevent a person from making an allegation directly to the health committee. I do not think that the clause relates only to matters that have already been before the investigating committee. As I read it, it is for the health committee to decide whether to refer a case to the investigating committee, not vice versa. Subsection (3) states: Where an allegation is made to the General Council, or to any of its committees (other than the Investigating Committee), it shall be the duty of the … committee to refer the allegation to the Investigating Committee. The clause to which my hon. Friend referred in fact relates to what happens at a later stage, when the investigating committee has a matter referred to it by the health committee.

Mr. Moss

I take my hon. Friend's point. Initially, a case would be refered to the investigating committee, which would then decide under clause 20(12)(b)(i) whether it is a matter specific to the health committee under clause 20(1)(d). If it is, it will send the case to the health committee for further inquiry.

Mr. Quentin Davies

I want to challenge the interpretation that my hon. Friend put on my last question to him. He said that clause 10 provides for the registrar to suspend an osteopath if evidence is produced showing that a registration has been fraudulently procured or incorrectly made. Subsection (2) provides for the registrar to have power, at any time during his investigation, to suspend the registration in question if he is satisfied that it is necessary to do so in order to protect members of the public. The registrar will have wide powers. If it were alleged that a registration was improperly made, he would have the power to anticipate the decision of the general council or its committees and suspend that registration.

Does the registrar have to give specific grounds for such a suspension? Does he have to define in what way he feels the public are endangered? From my reading of the clause, that does not appear to be the case. Should he incorrectly suspend an osteopath and subsequently discover that the registration was valid, and therefore the suspension should not have been made, is there any provision for compensation for the osteopath concerned? After all, he could have lost considerable revenue during his suspension, which was based on a mistaken decision by the registrar.

Mr. Moss

The title of clause 10 refers to Fraud or error in relation to registration. Although subsection (2) provides the registrar with power to suspend, he would not do that unless there were very strong grounds for suspecting that there had been a fraudulent entry.

There is no provision for compensation, but there are many checks and balances in the Bill to ensure that accusations filter through the system in a way that gives the osteopath every opportunity to make his case. Of course, very often he is backed by legal advice.

Mr. Quentin Davies

My hon. Friend says—and I have no reason to doubt him—that the registrar would be extremely careful before using the powers under the clause. However, subsection (2) is so widely drawn that we have to place confidence in the good sense and integrity of the registrar. His powers are not limited during the investigation. He could take a purely arbitrary decsion to suspend if he so wished.

Mr. Moss

I have nothing further to add to that point.

Sir Nicholas Bonsor

I am sorry to pester my hon. Friend, but it is important to clarify the issues surrounding clauses 20 and 23. We need to be absolutely clear about what clause 23 means; I do not think that that is clear at the moment. It would make the meaning absolutely clear if subsection (1), line 2, were amended to read "under section 20(12)". That would make the position what my hon. Friend has stated it to be, rather than as I originally perceived it to be.

The provisions of clause 23 would then apply only to any matters referred to the health committee by the investigating committee, rather than the alternative interpretation which currently could be thought to mean that any allegation under clause 20(1) should be dealt with by the health committee.

I do not ask my hon. Friend for an immediate answer to my suggestion, but I should be grateful if he would consider it.

Mr. Moss

I am grateful to my hon. Friend.

My hon. Friend the Member for Stamford and Spalding (Mr. Davies) said that clause 10(2) provided wide-ranging powers for the registrar. However, subsection (3) makes provision for the osteopath to appear before the investigating committee to state his case before an order is made.

Amendment agreed to.

Amendments made: No. 7, in page 8, line 13, leave out 'to'.

No. 8, in page 8, line 16, leave out from beginning to end of line 17 and insert— '() The General Council shall by rules make provision, in relation to any case where the Registrar proposes to suspend an osteopath's registration under subsection (2)—'.

No. 9, in page 8, line 23, leave out 'on the matter'.

No. 10, in page 8, line 24, leave out 'an entry in the register' and insert 'the entry in question'.

No. 11, in page 8, line 38, leave out 'may appear as' and insert 'shall be'.

No. 12, in page 9, line 3, leave out subsection (11).

No. 13, in page 9, line 5, at end insert— '() The General Council may by rules make such further provision as it considers appropriate with respect to suspensions under subsection (2), including in particular provision as to their duration.'.—[Mr. Moss.]

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