Concerns raised about CHRE’s powers and its use of spin doctors
The Council is to convey to the Council for Healthcare Regulatory Excellence its unease at a CHRE decision that, when investigating reasons for the apparent under-prosecution of cases, it has the power to requisition evidence given in confidence to a regulator but not seen by its disciplinary committee.
The Council’s concern will be report to the CHRE by the President,
who is the Society’s nominee to the CHRE. He will also report several
other concerns, including alarm at a decision that the criteria for determining
undue leniency should be expanded to include “maintenance of public
confidence in regulation”, rather than just the merits of the case,
and disquiet at the CHRE’s appointment of spin doctors to provide “reputation
management support” (see panel, p580).
Concern at CHRE’s apparent emphasis
on its public image
Concern that the Council for Healthcare Regulatory
Excellence appeared to be paying undue attention to its public
image were
expressed
during the Society’s October
Council meeting.
Bob Michell said that, although the Council was only supposed
to be “noting” the report of the CRHE meeting on 8 September,
he noted it with alarm. One paragraph said that: “Members agreed
that the criteria for determining undue leniency should be expanded
to include maintenance of public confidence in regulation.” “This,” he
said, “has overtones of the 1950s and the belief in hanging
and flogging as a way of maintaining public confidence in the law.
I would have thought that leniency depends on the merits of the individual
case and the relevant mitigating circumstances — at least,
I would have hoped that.”
Professor Michell also referred to a paragraph that included the
phrase “reputation management support”. He said: “I
think that George Orwell must be smiling posthumously at this new
word for the ancient concept of ‘spin’. But more seriously,
I am more distressed that a public body is throwing money at spin
doctors. I would have thought, by now, the last three or four years
would have taught us that spin doctors are generally hired to act
against the public interest rather than in the public interest.”
The President said: “I am sure you will appreciate, and will
have thought of it before you made your comments, that we are in
public business.”
Professor Michell replied: “That is why I made them now.”
The President said that such eloquently expressed comments needed
to be recorded so that he would have the opportunity to take them
back to the CHRE from the Society as one of the regulators. |
Council members’ unease
arose from its consideration, at the October
Council meeting, of a report
of the public session of a meeting of the
CHRE on 8 September.
Phillida Entwistle opened discussion by saying that she had two queries
on a section relating to “issues of evidence”. One concerned
the statement that, in investigating apparent “under-prosecution” of
cases the CHRE would ask regulators to supply all evidence that had been
given in camera. She asked for confirmation that, for the purposes of
this, the Infringements Committee was not a regulatory hearing, and therefore
the information that came to it would not be released.
Mandie Lavin, Director of Fitness to Practise and Legal Affairs, said
that, at present, the Infringements Committee’s deliberations and
decisions were not in the category of decisions that could be challenged
by the CRHE, in terms of referrals [to the High Court] under Section
29 [of the National Health Service Reform and Health Care Professions
Act 2002]. However, a judgment was shortly to be delivered in two cases — one
a General Medical Council case and the other a Nursing and Midwifery
Council case — in which one of the issues raised was how far the
High Court could look behind the prosecution process by the regulator.
That would be a landmark judgment and would need to be watched carefully.
Dr Entwistle said that her second question related to a CRHE decision
that “it should be possible for regulators to construct an explanation
for circulation that would indicate at the outset of proceedings that
any evidence given in camera at a regulatory hearing might be passed
on to the CHRE, but would be treated confidentially”. She asked
whether the Society intended to construct such an explanation, which
would presumably have to go to the defendants before the Statutory Committee
hearing? If so, would there be a legal input into its construction?
The Secretary and Registrar said that there would certainly be legal
input into its construction. Since last year those appearing before the
Statutory Committee had been advised, at the beginning of the hearing,
that the proceedings may be referred to the CHRE.
Dr Entwistle said that she was concerned that the Society was guaranteeing
confidentiality, which it could not do on behalf of the CHRE.
The President said that the issue of
confidentiality has been raised at the CRHE because at meetings of some
disciplinary bodies, such as the GMC, a considerable amount of evidence
is apparently taken in camera, is confidential and is not made available
to the CRHE. There has been some concern at the CRHE that it should be
made available.
Ms Lavin, supporting the President, said that the issue had arisen particularly
in respect of evidence given by minors or vulnerable adults. There was
a concern about how public interest and the administration of justice
should be balanced with transparency and public accountability. The CRHE
to some extent does not want to be completely excluded from evidence
given in camera and is trying to find ways around that problem.
Linda Stone said that the members of
the Infringements Committee were used to seeing abbreviated cases come
to them for consideration, where a complainant, for health or other reasons,
did not wish to appear as a witness before a tribunal. Similarly, there
were people who arrived as witnesses in hearings where there may be issues
of confidentiality about their personal circumstances. While the hearing
might be in public, those particular issues would be taken in confidence.
It might be as simple as their name and address not being given in public,
or it might be more than that. It applied to respondents as well as complainants,
because a health issue with a practitioner was not necessarily dealt
with in public. The issue of whether a matter should be held in public
or in confidence was complex, and Dr Entwistle had been right to raise
it.
Mrs Stone continued: “There has to be reassurance, both for those
who will act as witnesses and for those who are being complained about
and had allegations made about them, that certain issues, if they are
brought out into a hearing, will not suddenly find themselves in the
public domain.” It was important, because otherwise people may
well be reluctant to speak out. In the interests of the patient and the
public, it was important to ensure that the process continued to work
and did not grind to a halt because people were frightened to speak.
Mr Dajani asked how far back the CHRE could go.
Ms Lavin said that there was no indication that the CHRE is looking at
cases retrospectively. It would be difficult to do so. She added that
a review of historical decisions was possible in the light of the Shipman
Inquiry, but it would not necessarily be under the auspices of CHRE.
It was highly unlikely that the fifth report of the Shipman Inquiry would
be issued without some sort of suggestion that every regulator should
go away and see if their house is in order. Ms Lavin said that, in liaising
with the CHRE, the Society was mindful of the sort of information that
could be shared, how it was shared and how the Society did business with
the CHRE to make sure that it met the public interest. “I for one
would be very concerned if we were being asked about details of historical
cases, and would think very seriously about imparting such information.
There would have to be an extremely good reason.”
The Secretary and Registrar said that the cases sent to the CHRE so far
were from the time it had set up its procedure, which was about August
2003. It would be unusual to go back further.
Mr Dajani asked whether transcripts of CHRE meetings would appear on
the CHRE website.
Ms Lavin said that she did not believe the CHRE put transcripts on its
website. She believed it issued summaries and minutes. The point about
transcripts was probably well made.
Mr Dajani asked whether it would be possible for Council members to receive
transcripts of CHRE referral hearings.
The President said that transcripts of some CHRE business could be accessed
on the CHRE website [www.chre.org.uk],
but the review of cases under Section 29 was not in public.
The President said that he would take the comments back when he took
part in the discussions of CHRE. Comment from a body such as the Society,
which is responsible for regulation, is important and carries some weight. |
The
Pharmaceutical Journal