This was launched on 9 August 2010. You can access the consultation via the link below:

http://www.dh.gov.uk/en/Consultations/Liveconsultations/DH_118460

OHPA was established in law in January of this year, but is not yet operationally active.  It was anticipated previously that, from April 2011, it was to take over from the General Medical Council (GMC) the role of adjudicating on fitness to practise matters relating to Doctors and, in due course, take on the adjudication role in relation to other health professionals from the remaining health regulators.

Having reviewed the case for OHPA the Government is not persuaded that the creation of another body is necessarily the most appropriate and proportionate way forward in terms of adjudication.  We believe that steps can be taken to strengthen and modernise existing systems within the GMC to deliver substantially the same benefits as OHPA.  The learning from these steps can then be reviewed and, in due course, applied to the other health regulators.  We intend to consult with external partners on this approach shortly.

Reacting to the Government statement, Walter Merricks, Chair of OHPA said:

“The establishment of OHPA aimed to enhance public confidence by creating independent adjudication of health professionals. We have also identified changes that could reduce the cost and delay in fitness to practise hearings not only in relation to doctors, but also other health professionals. While we are disappointed at the Government’s provisional view, we intend to play a full part to support the proposed consultation on improving health professional adjudication.”

This is the first of a series of monthly OHPA Updates that we will share with friends and colleagues in the run-up to our go-live date on 1 April 2011.  We have made great progress in planning for the transfer of the GMC’s adjudicatory functions, in a spirit of partnership with both the GMC and the Department of Health.  But the programme is tight and not without its risks, and it is critical that we maintain an open dialogue with all interested parties.  Feedback about anything in this first issue would therefore be most welcome.

I have only been Chief Executive for a few weeks, but it is interesting how the debate around OHPA has changed in that short time.  Of course, the principle that the same body should not be responsible for both the investigation and adjudication of fitness to practise cases remains a strong one.  After all, we don’t allow the police or the Crown Prosecution Service to run the courts and public confidence in healthcare regulation will be much enhanced when fitness to practise hearings are fully independent.  But there will also be strong cost and efficiency savings to be realised from the OHPA approach.  Once we have our final rules in place, we anticipate that hearings will be speedier, more proportionate, and a good deal less expensive than at present.

The setting up of OHPA thus offers tangible benefits to the GMC and to the medical profession as a whole.  And further economies of scale will follow as and when other regulators join up with OHPA in the future.

The story so far

With ten months to go before OHPA becomes a fully functioning body, activity is hotting up to make sure everything is in place for day one. OHPA was established as a separate legal entity on 25 January, and the transition team have been working hard to build the infrastructure of the new organisation and ensure the policies and procedures needed to operate successfully are in place.

The new board, chaired by Walter Merricks, has made decisions on what will happen on day one – offices and hearing rooms will be located in Manchester and London, a separate IT system will be in place, and adapted transitional rules will take the organisation through the changeover period.

They have also looked at what OHPA wants to be in the future and, through research and more informal engagement, have started to form a picture of how adjudication can develop in the years ahead.

Although we are still in temporary accommodation with temporary IT and temporary staff, OHPA is already taking shape under the strict governance and watchful eyes of the Department of Health, GMC, GOC and other interested parties.

Our annual report, which will be laid before Parliament next month, outlines the huge strides forward in the first 65 days of activity while the corporate plan published in August will show how we plan to move forward to ensure successful delivery.

We want to know what you think

We would very much like to hear your ideas for the future of OHPA. Later this summer, we will be consulting on our transitional procedural rules. These rules will be an adapted version of the current GMC rules ensuring a smooth transition and no disruption or time lag to the service provided. This consultation will look very familiar to you and we encourage you to take the few minutes to look through and respond to let us know that what we propose is realistic.

Perhaps, of more interest will be what we plan for the OHPA of the future – what we will look like after the transition.

Our over-riding objective remains to deal with cases in a way that is proportionate whilst avoiding unnecessary cost and delay. Through the Health and Social Care Act 2008, we will have more powers to change than the GMC currently enjoys and we would appreciate your responses on how we plan to use these powers to shape adjudication in the future.

We will be examining ways to reduce hearing length, reduce the cost of hearings, and looking at potential steps that can be taken to improve efficiency. Your responses to our ambitions consultation will do much to help shape the future of independent adjudication.

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Personnel
The programme director has made key interim appointments to create a small transitional team.

Stephen Shaw, the recently appointed chief executive, has now confirmed that his start date at OHPA will be on 10 May 2010. He will be responsible for the recruitment of the permanent senior management team. In addition, the adjudication support team currently employed by the GMC will transfer to OHPA.

“I am hugely grateful to the OHPA transitional team for their splendid work in helping to set up OHPA,” Stephen said. “They are some of the most talented people with whom it has been my pleasure to work. Their preparation meant that the board was able to take fully considered decisions yet could swiftly share them with GMC colleagues and others.”

Accommodation and location
The OHPA team is currently housed in Department of Health premises at New Kings Beam House, Upper Ground, London and expects to be moving to new London headquarters later this year.

Looking ahead to April 2011 OHPA will retain the GMC offices in Manchester, which accommodates staff and hearing rooms, and will keep a location in London but it is not yet decided where this will be.

The chief executive will take forward the important task of establishing this new independent body, which from 2011 will adjudicate on fitness to practise cases brought before it by the General Medical Council (GMC) and the General Optical Council (GOC).

The GMC and the GOC will continue their current role regarding doctors, dispensing opticians and optometrists, in setting standards of practice, investigating complaints and deciding whether to refer concerns about a professional’s fitness to practise to an OHPA panel for a hearing. This separation will further demonstrate that decisions are fair and effective, separate from the regulators, the professions and Government.

Before OHPA formally begins its new role in April 2011, its new chief executive will oversee a wide public consultation about its procedural rules to ensure that all stakeholders are able to participate in the development of how it will operate.

Walter Merricks, chair of the OHPA board said: “Stephen Shaw has a distinguished record of achievement in a career of exceptional public service and the board is delighted at his appointment.

“He has experience of heading an important public office in a challenging environment, having built and led senior management teams both in the charitable and public sectors.

“He has operated in a judicial environment as a member of the Parole Board’s review committee, and having himself conducted major inquiries.

“Stephen has previous experience of healthcare regulation through his role in conducting fatal incident investigations into deaths in custody which required him to commission clinical reviews involving the GMC.”

Stephen Shaw said: “The establishment of OHPA represents a great opportunity both to enhance public confidence in the health professions and to deliver a lean and consistent adjudicatory process in fitness to practise cases.

“As the inaugural chief executive, I want OHPA to become a learning organisation, with close relationships with our stakeholders, and regularly feeding back to the adjudicatory panels and to the professions we oversee.

“There is a very challenging agenda ahead – not least in the run-up to 1 April next year – but I am looking forward to working with colleagues to establish OHPA as a nationally and internationally recognised centre of excellence.”

This appointment has been made by the Appointments Commission on behalf of the Privy Council under the terms of the Health and Social Care Act 2008 following a fair and open competition. Mr Shaw is expected to take up his appointment in early May.

Notes to editors:
1. Media enquiries to Carol Bewick, transitional Communications Director of OHPA on 020 7633 7685
2. Stephen Shaw CBE was appointed as Prisons Ombudsman in 1999. Three years later his remit was extended to take in complaints against the National Probation Service (NPS) from those under supervision in the community. His remit was further extended to take in complaints from those in immigration detention in October 2006. From 2004 his office has been responsible for the investigation of all deaths in prisons and immigration removal centres, as well as the deaths of residents of NPS hostels (approved premises). Mr Shaw’s office conducts around 200 such investigations each year. Between 1981 and 1999 he was director of the Prison Reform Trust. His earlier career included research for the Home Office and the National Association for the Care and Resettlement of Offenders. He holds a degree in economics and politics from the University of Warwick and postgraduate degrees in economic and social history from the universities of Leeds and Kent.
3. The White Paper, ‘Trust, Assurance and Safety’ set out the Government’s intention to establish a new Office of the Health Professions Adjudicator which will have functions (across the whole of the UK) in relation to the professions regulated by the Medical Act 1983 and subsequently the Opticians Act 1989.  These proposals were carried into legislation in Part 2 of the Health and Social Care Act 2008.
4. The board of the OHPA (which Mr Shaw will join) consists of Walter Merricks CBE (Chair), Dame Janet Finch, Pamela Charlwood, and Andrew Colquhoun.
5. The Office of the Health Professions Adjudicator (OHPA) will be entirely independent from government. Independent adjudication is intended to further enhance confidence in the decision making process around fitness to practise.

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.

OHPA is the new independent body set up under the Health and Social Care Act to adjudicate on fitness to practice cases brought before it by the General Medical Council (GMC) and subsequently the General Optical Council (GOC).

The establishment of OHPA marks another major milestone towards meeting the proposals made by the Government following Dame Janet Smith’s recommendations in the Shipman Inquiry.

Chair, Walter Merricks, said: “Now that we are a legal entity, our small transitional team can start to focus on getting everything in place for the organisation to go live next spring. My three newly appointed non-executive colleagues and I met for the first time as a board earlier this month and we are looking forward to the appointment of our first Chief Executive very soon. I anticipate a busy 14 months of preparation between now and April 2011 but I am confident that by working closely with the GMC we will be able to create a smooth transition next year.”

The next major step for OHPA will be a consultation around the procedural rules due to be conducted in the spring. To follow OHPA’s progress please keep returning to our website.

The OHPA is a new independent body which from 2011 will adjudicate on fitness to practice cases brought before it by the General Medical Council (GMC) and subsequently the General Optical Council (GOC).

Dame Janet will assist Chairman Walter Merricks, along with the other two non-executive directors Andrew Colquhoun and Pamela Charlwood.

The GMC and GOC will continue in their current roles regarding doctors, optometrists and dispensing opticians, which involve setting standards of practice, conduct and performance, and investigating complaints.

Once OHPA is established, the GMC and GOC will transfer their fitness to practise hearings to an OHPA panel for a hearing.  This separation will further demonstrate that decisions are fair and effective, separate from the regulators, the professions and Government.

Walter Merricks said: “I am pleased to welcome Dame Janet as a fellow director of OHPA. She has a distinguished career history and has held a number of non executive public roles which will enable her to bring relevant experience to the board.”

Dame Janet has been appointed by the Appointments Commission on behalf of the Privy Council, following fair and open competition.

Andrew Colquhoun has been appointed for four years from November 2009. He is chairman of the Investigation Committee of the Institute of Chartered Accountants in England and Wales and holds a number of non-executive positions in the field of horticulture and the environment. He is also a practising counsellor.

Pamela Charlwood has been appointed for three years from November 2009. She is Vice Chair of the Hampshire Partnership NHS Foundation Trust and non-executive lead for clinical governance and risk. She is a non-executive board member of the South East England Regional Development Agency, and the Learning and Skills Council’s South East Region.

Both directors will work with Chair Walter Merricks to establish OHPA, which from 2011 will adjudicate on fitness to practise cases brought forward by the GMC and, eventually, the GOC. By separating investigation from adjudication, OHPA will ensure that fitness to practise decisions are fair, effective and separate from the regulators, the professions and government.

Chair Walter Merricks said: “I am pleased to welcome Andrew Colquhoun and Pamela Charlwood as fellow directors of OHPA. They both have distinguished career histories and will bring relevant blends of experience to the board. Their appointments mark an early milestone in the development of OHPA.”

The Chair will oversee the key task of establishing this new independent body, which, from 2011, will adjudicate on fitness to practise cases brought before it by the GMC and, eventually, the GOC.

Before OHPA commences its role, Mr Merricks will preside over a wide public consultation about its procedural rules. This will enable stakeholders to participate in the development of the organization and how it operates.

Walter Merricks was Chief Ombudsman at the Financial Ombudsman Service since 1999. Prior to this he was Chairman of the British and Irish Ombudsman Association (BIOA) and a member of the Human Fertilisation and Embryology Authority, where he acted as interim Chair in 2007-08.

Walter Merricks said:  “I relish the challenge of taking the principles that have been central to my long-standing work as an ombudsman – independence, fairness and consistency – and applying them as key values in establishing the new Office of the Health Professions Adjudicator. I very much look forward to working with the widest range of stakeholders to build respect for and confidence in the new arrangements.”

Health Minister Ann Keen said: “We look forward to working closely with Walter Merricks in the creation of the Office of the Health Professions Adjudicator. This new independent body will work with the professional regulators to reassure the public, professionals and employers that serious concerns about doctors and opticians continue to be dealt with fairly and effectively.”