§ Mr. MossI beg to move amendment No. 17, in page 21, line 42, leave out paragraph (e) and insert—
'(e) securing that —
- (i) any hearing before the Professional Conduct Committee is held in public unless the Committee decides that it is in the interests of the person making the allegation, or of any person giving evidence or of any patient, to hold the hearing or any part of it in private; and
- (ii) any hearing before the Health Committee is held in private unless the Committee considers that it is appropriate to hold the hearing or any part of it in public;'.
§ Mr. MossAmendment No. 17 is concerned with the hearings of the professional conduct and health committees. As currently drafted, the Bill provides for either committee to hold its hearings in public unless it considers it appropriate for a particular hearing to be held in private. In deciding whether to hold a hearing in private, the committees will be able to take into consideration the interests of the person making the allegation, or of any patient or other person giving evidence—or, in the case of the health committee, the interests of the osteopath concerned.
The amendment has two purposes. First, it builds in a degree of flexibility to enable either committee to hold part of the hearing—as distinct from all of it—in public or in private. Secondly, it changes the default position of the health committee's hearings by providing for them to be held in private unless the committee considers it appropriate to hold all or part of them in public.
The second feature is the more significant. Health committee hearings are likely to raise matters of a personal and sensitive nature. They could, for example, shine a spotlight on a medical problem which, until then, the osteopath had refused to recognise. It may also be necessary to discuss, or ask for evidence to be produced about, matters of a very personal nature. That could make the whole procedure rather traumatic.
It is important for the Bill to recognise that proceedings before the health committee would be completely different from those that take place before the professional conduct committee. The professional conduct committee hearings will focus on allegations of misconduct, incompetence and conviction of a criminal offence: they will be concerned with matters of professional discipline. That will not apply to health committee hearings. For the reasons that I mentioned earlier, there will be an imperative need for confidentiality; without that, the procedures would risk failing to win the confidence of the profession. It could also mean that any encouragement that the GOC may try to give the profession in the future to refer cases of sick colleagues would be met by a wall of silence. Changing the default position of the health committees' hearings in this way would overcome those concerns, and would also bring 425 the osteopaths scheme into line with the practice adopted by other statutory schemes for health professionals which make provision for a similar committee.
§ Mr. Quentin DaviesI have some problems with the amendment. The assumption behind it is that, whereas it may be a matter of public interest for a case to be heard by the professional conduct committee—in the sense that unprofessional or criminal conduct on the part of the practitioner may be alleged—the health of a practitioner is not a matter of public interest.
Is it not a matter of public interest that, for example, a practitioner may have AIDS? I cannot comment on the possibility of HIV being transmitted from practitioner to patient during a course of osteopathic treatment, but I shall be interested to hear what my hon. Friend has to say about that. As my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) knows, the question whether medical practitioners have an infectious disease has become a matter of intense public interest in recent months. That must be especially true in the case of a disease such as HIV, for which there is no cure and in respect of which the prognosis is always fatal.
No doubt my hon. Friend will respond with his usual courtesy and knowledge of the subject. I hope that, in doing so, he will not refer me again to the practice of the medical profession and the BMA general council and disciplinary committee—for several reasons. First, I do not pretend to hold a brief—and nor, I think, would my father wish to say that he held a particular brief—for the BMA.
Secondly, the BMA and the royal college have existed for many generatns. There is therefore an established jurisprudence: we can see how in practice the BMA handles allegations of professional misconduct and so on. That means that concerns such as those expressed today about, for example, the time that investigations will take and about compensation do not necessarily arise with the same force. We have a whole record of historic experience of the BMA, whereas in the Bill, however, we are setting up a completely new and untested body. There will be some comfort to be taken from the fact that the body will be under the supervision of the Privy Council, but we do not know who the members of the council will be. Osteopaths have no record of supervising themselves and their profession. I am sure that they will make a great success of it, but if we are to set the new body on the right course, it is appropriate for such questions to be asked and that they should be convincingly and adequately answered.
Finally, doctors in particular would find it especially ironic were they told that osteopaths would never aspire to higher standards than the medical profession and that, where the medical profession has certain established procedures—for example, for disciplinary hearings—higher standards could not possibly be set in a new Bill to establish a new professional body for a new profession.
§ Lady Olga MaitlandIn considering when evidence should be given in public and when in private, it is extremely important both to prevent a witch hunt and to keep the public interest very much in mind. There must be a careful delineation and a careful judgment about when each is appropriate. I imagine that a patient would find it 426 well-nigh impossible to give evidence on very personal matters if he knew that the information would be in the public domain. That point of view must be respected if, without such evidence, the investigation could not continue.
§ Sir Nicholas BonsorI am puzzled about the logic and one of the consequences of the amendments. As I understand it, the original hearing will be in private if it is before the health committee, but the appeal will be in public. My hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) said earlier that he thought that there was a difference, in the sense that the original hearing was at the instigation of someone who was making a complaint whereas the appeal was at the instigation of the osteopath against whom the complaint was made. Presumably, we are supposed to think that that justifies the fact that the second hearing will be in public whereas the first has been in private. I do not follow the logic of that.
It is true that it is the osteopath who brings the appeal, but he would not have to bring the appeal if he did not feel aggrieved by the judgment in the first hearing. I do not see why he should be forced, by the application of a different criterion, to bring all these matters out into the open, having been able to keep them within the privacy of the general council in the first instance.
I take the points made by my hon. Friends the Members for Stamford and Spalding (Mr. Davies) and for Sutton and Cheam (Lady Olga Maitland). None the less, I feel that the osteopath should have a right of privacy and, in circumstances in which it is held to be correct that he should be allowed to have a hearing in private in the first instance, there is a lack of justice in the matter being forced into the open on appeal.
§ Mr. SackvilleWe are discussing the important question of fitness to practise. The King's Fund working party described the need to secure a high standard of professional conduct among registered practitioners as
one of the primary functions of the Council of a self-regulating profession.It went on:Although detailed arrangements for ensuring this vary slightly from one profession to another, the features common to most professions are: first, the promulgation of ethical notes for the guidance of practitioners or rules of professional conduct; secondly, machinery for investigating allegations of unacceptable professional conduct; and, thirdly, procedures governing the preferment of charges before, and the hearing of charges and the imposition of penalties by, a suitably constituted domestic tribunal.Readers of the Bill will be aware that those are all important elements of the proposed statutory scheme.My hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has already said that not all other similar statutory schemes make provision for a health committee. The King's Fund working party commented that the statutory provision of a health committee has been made in more recent times
for the better protection of both practitioners and the public … to deal with those practitioners who should not be allowed to practise for reasons of ill health.The King's Fund working party went on to recommend the establishment of a health committee which would beresponsible for hearing cases referred to it by the Investigating Committee where it seems to the latter that there is prima facie evidence of ill health sufficient to warrant suspending a practitioner's right to practise altogether or 427 requiring him or her as a condition of continuing registration to comply with certain conditions (for example to practise under supervision)".Once again, my hon. Friend's Bill incorporates a key recommendation of the working party. In addition to ensuring that the fitness-to-practise machinery provides adequate safeguards for members of the public, it is important that it has the ability to take account of the needs of osteopaths in appropriate circumstances. My hon. Friend has described the need to provide for hearings of the health committee to be in private unless the committee considers it appropriate for all or part of a hearing to be in public. I fully support his argument. Such hearings are likely to touch on sensitive and personal matters that neither have a place within, nor a need to be brought into, the public domain.
§ Mr. Quentin DaviesWill my hon. Friend the Minister concede that if an osteopath has an infectious and extremely dangerous disease that he might have passed on to his patients, it would be a matter of concern, at least to his patients, to know whether they had contracted that particular virus or bacterium? In those circumstances, it would not be right to keep the facts of the case purely to the privacy of the health committee meeting.
§ Mr. SackvilleMy hon. Friend makes a fair point. However, I refer him to the guidelines for the medical profession, that make a clear distinction between procedures that are invasive and likely to give rise to the transmission of HIV or similar infections and procedures that are not. Those guidelines are very clear. I also remind my hon. Friend of recent announcements that put into perspective the whole question of the infectiveness of those who carry the HIV virus.
In addition to ensuring the fitness to practise machinery to provide safeguards, it is important to take the needs into account. I welcome the flexibility that the amendment provides in balancing the wider public interest with that of an individual witness appearing before the professional conduct committee. Without the amendment, the committee would have the choice only between holding the entire hearing in public or in private. If the amendment is accepted, it will enable the committee to take that decision in respect of different parts of the hearing.
Therefore, the amendment is important to fine tune the provisions of the fitness to practise machinery. I join my hon. Friend the Member for Cambridgeshire, North-East in urging the House to accept it.
§ Mr. MossThe question raised by my hon. Friend the Member for Stamford and Spalding (Mr. Davies) about HIV status has been clarified by my hon. Friend the Minister.
§ Mr. Quentin DaviesThe Minister said that the guidelines laid down for the medical profession which distinguish between diseases that hold some hazard for patients and those that do not are very clear. He is right: they are clear. My point is that they are not clear in respect of the osteopathy profession for which we are now legislating. Should not the clarity that exists in the medical profession be introduced into the osteopathic profession by virtue of the Bill?
§ Mr. MossMy hon. Friend the Minister made it quite clear that the rules and guidelines issued by the 428 Department of Health are clear cut. As osteopaths do not use invasive procedures, they do not come within the ambit of the Department's guidelines.
§ Mr. SackvilleMy hon. Friend the Member for Stamford and Spalding (Mr. Davies) was mistaken when he referred to diseases. He should have referred to the procedures. That is the differentiation which must be made.
§ Mr. MossMy hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) made an excellent point. She was absolutely right, and her point goes to the heart of the amendment. We want to establish a situation in which the choice exists with relation to investigations before the health committee. We are not saying that the hearing must be in private or in public. We are saying that it can be held in private unless the committee considers it appropriate to hold the hearing, or any part of it, in public. The choice is there.
My hon. Friend the Member for Upminster (Sir N. Bonsor) drew attention not to a discrepancy, but to a difference in relation to the wording of new clause 3 about appeals that are held in public and the opportunity for hearings to be heard in private in respect of the health committee investigation. The appeal in public in respect of the health committee is subject to rules covered in the Bill. Those rules could say that the appeal should be in private if the osteopath so requests.
§ Amendment agreed to.