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Health and Social Care Bill – medical regulation

Office of the Health Professions Adjudicator (OHPA)
January 2008

(This document applies to the UK)

Part 2 of the bill proposes the creation of a body, the Office of the Health Professions Adjudicator (OHPA). This new body is expected to take over the adjudication of fitness to practise cases from the General Medical Council and General Optical Council. This will result in the separation of the adjudication of cases from their investigation and prosecution.

The BMA has not opposed establishing the adjudicating body but has questioned its structure, method of working and funding. In many ways, the proposed changes reflect the way the GMC has been functioning recently, making adjudication independent of the investigation procedures. Given that the GMC has already separated its adjudication function, it is unclear how the new body will improve judgments in fitness to practise cases.

Although the Bill does include some detail about the operation of the OHPA, much still remains to be clarified and the BMA expects to be consulted on other aspects of OHPA’s operation in due course.

• The BMA will want to ensure that the operation of the OHPA will guarantee robust and fair adjudication processes for doctors.
• We would also welcome clarification of when the government expects OHPA to begin functioning.

Composition of OHPA panels
The Bill proposes (clause 93) that OHPA’s fitness to practise panels can be chaired either by a lay person or by a professionally qualified member. We do not object in principle to a panel being chaired by a lay person; our priority is to ensure that OHPA’s panels are composed of properly trained members and that the panels treat both complainant and defendant fairly. We also believe that it is in the interests of the doctor whose case is being heard that the panel comprises a doctor who works in the same branch of practice as the case being heard.

Independence of OHPA from the GMC and from Government
The BMA believes that the OHPA must be able to demonstrate its independence from both the Government and the GMC. It is appropriate for the GMC to continue to set standards for the medical profession and to have some input into the range of sanctions to be applied but Schedule 7 (page 135, line 6) states that OHPA “must” take account of guidance published by the GMC on the following matters:

• Where a practitioner’s fitness to practise is found impaired, what sanction would or would not be appropriate.
• Where a practitioner’s fitness to practise is not found to be impaired, whether a warning should or should not be given regarding future conduct or performance.
• Where a person has had his/her name erased from the medical register, whether his/her registration should or should not be restored.

The GMC may also publish guidance on the following, of which OHPA is also obliged to take account:

• The type of conditions to be imposed where a practitioner’s registration is to be made conditional.
• The period of time that a person’s registration should be suspended or made conditional.

It is our view that by including in the Bill an obligation upon OHPA to follow the GMC’s fitness to practise sanctions guidance (now put on a statutory footing), the independence of the so-called independent regulator is compromised.

Similarly, the BMA has concerns that it is intended that the new body will be a Non Departmental Public Body (NDPB). OHPA does not appear to be fully independent of the Department of Health as it must keep accounts in such form as the Secretary of State may determine (schedule 6, paragraph 19) and must report to the Secretary of State (schedule 6, paragraph 20).

• The BMA would be more comfortable if the OHPA reported direct to Parliament. As the situation currently stands in the Bill, OHPA would be reporting to the UK’s main provider of healthcare and main employer of doctors.

Transition
The transition of functions from the GMC’s fitness to practise panels to those of the OHPA will require careful planning and management.

• The BMA seeks clarification of how this transitional period will be organised and the timescale for this.

OHPA's funding
New Clause 7 relates to fees payable by the GMC and General Optical Council to OHPA. It allows for regulations to be made by the health secretary requiring each of the regulatory bodies to pay for OHPA’s running costs.

Regulations will set the fee level, which will be determined by OHPA. The fees will cover OHPA’s chargeable costs and will be apportioned between the regulatory bodies. This gives the medical profession considerable concern in that, along with the changes to the standard of proof and the composition of the GMC, they are being asked to pay for bodies over which they have no effective control. These bodies are there as much to benefit society as they are to support doctors and it seems logical that society should carry a significant amount of the costs.

The chargeable costs are those associated with running the OHPA, other than the costs incurred “before such day as may be specified in the regulations or incurred for a purpose specified in the regulations.”

• The BMA seeks assurances that the GMC, and therefore doctors, will not be expected to bear the costs of creating the new body, the start-up costs.
• The BMA seeks reassurance that the new body will provide value for money:
  The BMA is keen to have some idea of the proportion of OHPA’s running costs which the GMC will be expected to pay.
  The BMA wishes to know what controls or even sanctions can be placed on these bodies to keep costs, and therefore fees, under control.
  The BMA is anxious to know what impact OHPA’s fees is likely to have on the annual retention fee paid by doctors to the GMC, which, with effect from April 2008, will increase from £290 to £390 per annum for full registration.

Before making regulations under this section, the health secretary must consult the regulatory bodies and “other appropriate persons”.

• As doctors pay fees to the GMC from which OPHA’s costs will be paid, the BMA expects to be consulted on these regulations.

The procedural rules, clauses 98 (3) and (4) make reference to the award and assessment of costs and expenses.

• The BMA understands that these subclauses relate only to those practitioners regulated by the General Optical Council, but we would welcome clarification of this.

Confidential information
As part of its duty to inform the public, Clause 100(3)(a) indicates that the OHPA may withhold from publication “information concerning the physical or mental health of a person which the OHPA considers to be confidential”.

• The BMA would have deep concerns if confidential information about the health of a doctor were made publicly available and therefore suggest that the OHPA be prohibited from publishing such information and not be given discretion in the matter.

For further information please contact the Parliamentary Unit:
Email: parliamentaryunit@bma.org.uk