Walter Merricks CBE, Chair, 26 Janury 2010
Thank you for inviting me to this event and for the opportunity to tell you something about the OHPA, where we have got to in setting up the organisation, what our plans are, and what we aim to do. But more important for me will be the opportunity to hear from you.
Background
No doubt you are all familiar with the Dame Janet Smith’s report on the Shipman case, the Government 2007 White Paper ‘Trust Assurance and Safety‘ which led to the Health and Social Care Act 2008. Then earlier this year the Department of Health set up a working group under the Tackling Concerns Nationally strand, chaired by Sir Ian Kennedy, to make recommendations for the new body. The purpose of the new arrangements is to enhance public confidence by separating and making properly independent the function of adjudication on the fitness to practise of doctors and other healthcare professionals.
Although the proximate cause of concern related to confidence in the medical profession and its disciplinary proceedings, the Government made it clear that the same principle could apply to other professional regulators. Here I should acknowledge the forward thinking of the GOC (General Optical Council) when it decided that it would wish to be the next after the GMC (General Medical Council) to transfer its adjudication to OHPA. We are now working closely with both the GMC and the GOC. As next in line the GOC has been able to make an important contribution to our planning, and to ensure that our thinking and outlook is not exclusively GMC-centric. The GOC, although much smaller than the GMC in terms of disciplinary business, has three distinctive features to its regulatory and disciplinary process. First, it regulates and disciplines students in a way that the GMC and most other regulators do not; second, it has the power to impose financial penalties; and third, it exercises a regulatory and disciplinary jurisdiction over businesses as well as individuals.
Progress in building the organisation
The OHPA is a corporate body to be overseen and managed by a board; this is to consist of a chair (myself), a chief executive and three non-executive directors: Pamela Charlwood who had a distinguished career in NHS management and leadership, and Andrew Colquhoun who amid a varied career was chief executive of the Institute of Chartered Accountants in England and Wales, and Dame Janet Finch, soon to retire as vice chancellor of Keele University. We are currently recruiting for a chief executive and I hope we will have an individual in post early shortly. In the meantime I and my colleagues are supported by a programme director, and a small transition team of interim directors working with Health Department policy officials and lawyers.
Yesterday was an important milestone on our journey, as most of the relevant sections of the Act came into effect, establishing us as an organisation in our own right, with our own governance framework.
The framework of the 2008 Act
Under the 2008 Act we are to schedule, case manage and arrange for the decision in fitness to practise cases referred to us, with panellists trained to operate against a set of OHPA defined rules. Our target date for going live on GMC cases is April 2011. The Act makes provision for this to be followed by adjudication for General Optical Council cases (provisionally in 2012), and the assumption is that other regulators will in due course cede their adjudication functions to us thereafter.
We are to recruit and appoint panellists – chairs, lay people, professionals and lawyers – and provide training for them. The GMC has some 300 panellists at present. We will need to decide on a process for and the timing of a recruitment exercise for OHPA panel members and assessors. You may be aware of the general picture of the GMC’s caseload, some 360 cases referred to FTP (fitness to practice) panels, with about 500 open at any one time. The GOC on the other hand has 38 panellists and refers only around 30 cases a year to its FTP Panels.
OHPA is given significant powers to make its own procedural rules. These may include provisions about preliminary hearings, the giving of directions and the consequences of failure to comply with them, taking account of undertakings, and the award and assessment of costs. The rules will also have to make provision for appropriate transitional arrangements in relation to cases that are already under way or in the pipeline. We are naturally required to consult before making these rules. In advance of that consultation I have received a number of unsolicited suggestions for how new rules could improve the system, and I have asked a wide range of stakeholders to contribute their ideas informally now so that we can focus the consultation on the issues people see as important.
The appetite for change
Within the framework of the Act there could be a range of different ways in which we could operate. We could adopt an amalgam of most of the GMC’s and the GOC’s rules, appoint all their panellists, and carry on under a new label largely as before, gradually evolving as we go. That would be the least risky option from an operational perspective, but would give the impression that we were simply the GMC under a new badge.
Alternatively, we could undertake quite substantial changes in style, process, and personnel. From all that has been said, both in and outside Parliament, and in the representations I have had since being appointed, not least with the you and your colleagues, I detect an expectation of significant change: people feel there are opportunities for speeding up the process and potentially reducing the cost for the benefit of all concerned – registrants, complainants, employers and the public. The average hearing length of GMC cases has expanded from 4.7 days in 2006 to 6.7 days last year with the number of sitting days up from 1,750 to 2,100. Fifty two per cent of the hearing time is spent with the panel deliberating in camera.
The GMC itself is concerned about, and recently issued a consultation about, improving case management which it clearly sees as the key to improvement. The AOP (Association of Optometrists) has told me that it supports better case management in GOC cases and that it wants to see greater consistency of outcomes. And it is not as if the GOC is wedded to the status quo. Its officials have been active in contributing positive suggestions for how the OHPA process could make substantially beneficial improvements.
Changes that some respondents have identified as potentially beneficial in principle are regarded as only appropriate in the context of independent adjudication under the OHPA regime. So the improvements we need to identify will involve leveraging the benefits of our independence to provide a regime of the kind that might stand comparison with – and may even be an improvement on – what happens elsewhere in the justice system.
Options for change in adjudication
There are aspects of the adjudication process on which we are encouraged to consider making changes, in particular the make up of panels – or tribunals as we might call them. There was much debate in Parliament as to the merits of having legally qualified chairs, and we are empowered to conduct a pilot scheme. Some people see legally qualified chairs as important, but not everyone does. Those who support them envisage them not only being able to hold the ring more effectively in hearings, but as having a key role in the early case management.
It is certainly the case, however, that lawyers chair the disciplinary hearings of the Architects Registration Board, the Bar Standards Board, the Appeal Bodies of the Institutes of Chartered Accountants and Management Accountants, disciplinary tribunals appointed by the Accountancy and Actuarial Disciplinary Board, the Society of Lloyds, the Solicitors Disciplinary Tribunal, the Royal Pharmaceutical Society, and the Financial Services and Markets Tribunal.
There are other aspects of the process to which people have drawn attention. The GMC has a three-stage process (finding facts; impairment; and sanctions) which has been described to me as “inordinately and unnecessarily lengthy”; the GOC process involves four stages. But no doubt many would say this is necessary for fairness.
Disclosure of arguments and of expert evidence is now generally accepted practice in many other areas of the justice system. If the parties and tribunal members were able to familiarise themselves with these in advance, it is said that the proceedings could be considerably speeded up. This also might enable a more accurate estimate of the time likely to be taken in a hearing, thus minimising cases going part heard.
Moreover is it necessary that tribunal members be exclusively appointed on a part-time basis? If OHPA develops a much wider jurisdiction, as is expected, the case for a mix of full time and part time members may be stronger.
Full-time chairs could be consistently available to deal with case directions, and any pre-hearing applications arising from them, including the award of costs for failure to comply with directions. The criticism is sometimes made that the remuneration arrangements for daily paid panellists provide an inappropriate incentive structure for progressing cases speedily or for decision-making on applications for adjournments that could, if granted, leave panellists out of pocket; while I know that such accusations are seen as offensive by panellists and there is no evidence of inappropriate behaviour in practice, the criticism is difficult to refute. The appointment of full-time chairs or members on specific period contracts might have the benefit that such criticisms could no longer be made.
An expanded jurisdiction
At present it is not clear what appetite there is for transferring adjudication functions to us both in government or among the other regulators – the Nursing and Midwifery Council , the Health Professions Council, the General Dental Council, the Councils for Osteopaths and Chiropractors, and the newly- formed General Pharmaceutical Council – not to mention the Pharmaceutical Society of Northern Ireland. The CHRE (Council for Healthcare Regulatory Excellence) recommended that the NMC should do so as an early priority after the GOC. The new General Pharmaceutical Council is only just coming into being and will have many other issues to consider right now.
No doubt there will be both political and practical issues to consider in planning a transfer programme. But I do hope that before long there can be a developing consensus on a set of assumptions and a timetable enabling everyone to do some provisional planning.
There may be benefits to be derived if and when OHPA jurisdiction extends to other regulators. A single set of rules and a single jurisprudence across a single jurisdiction should be more consistent in the eyes of the public and health professionals, easier for lawyers and for appeal judges, better for training and expertise of staff and tribunal members. If it has not happened by then we could implement the recommendations for the harmonisation of sanctions recently made by the CHRE. It might also avoid the few unfortunate occasions when the same factual subject matter involving a number of professionals from different disciplines gives rise to more than one set of proceedings.
The other potential benefit would in due course be a financial one. As you may be aware, OHPA is currently financed during the transitional period for the next 15 months by the Department of Health, but after that we will be financed by levies on the regulators for the adjudication work we do. We will do this on the basis of a fee charging regime on which we will have to consult, and I am sure that the AOP will want to take a keen interest in that exercise. That means that we will be sending bills to the GMC and the GOC and we will have to be sure that these accurately reflect the work properly attributable to the cases they have referred to us. You may be reassured to know that the Treasury will have a role in this process.
This will of course see for the first time the cost of adjudication separately identified in a transparent way. There will be legitimate expectations that we should do what we can to keep the unit costs down. But a larger remit would produce economies of scale, through a single set of staff, tribunal panel members, IT system and hearing facilities. This will be important to GOC registrants since the bills we send to the GOC will in the end be passed on to you and your colleagues. I am aware of the increases in registration fees you have been called upon to pay, so I am conscious of the sensitivity of GOC registration fees for you.
Vision for the future
So what is my vision for OHPA? Overall that we are able to develop a credible reputation with regulators, government, parliamentarians, registrants and the public for delivering swift and fair justice within an efficient framework that respects the human rights of all concerned.
I hope that in due course we can be seen as a top class deliverer of fitness to practise determinations, learning from and engaging with our counterparts elsewhere in Europe, the Commonwealth and beyond. From what I understand, our current process in the UK is not universally admired by external observers; the length of time taken up over the whole process, let alone that taken up in hearings is compared adversely to those in other jurisdictions.
In the UK I would like us to build links with the other professional disciplinary systems for accountants, actuaries, architects, lawyers, vetinary surgeons, surveyors, teachers, and social workers. We are now listed as a tribunal under the aegis of the Administrative Justice and Tribunals Council, a body that tries to take an overview of what is now known as the “administrative justice system” and I hope that the Council will help facilitate such contact with professional disciplinary bodies.
But I hope that optometrists will be able to take some pride in feeling that not only is your profession regulated to high standards, but that it will soon no longer be open to the accusation from the public or from members of the profession that its disciplinary body is both prosecutor and judge in its own cases. If, in addition we can make the process speedier and less costly while maintaining the essential elements of fairness, then I hope that you and the public will be able to welcome the changes that we will have brought about.
Thank you for listening.
