Regulation of Health and Social Care Professionals Consultation

of any other statutory committee. 33
Advisers
9.38 Most of the regulators make provision for the appointment of legal and
professional advisers as a source of expertise for the Panel. Some rules provide
that the advice given by the legal or professional adviser must be given in the
presence of the parties or if advice was given in private, the parties must be
notified. 34
9.39 Not only must the legal adviser give advice to the Panel on any question of law
referred to them, but they must also intervene to advise the Panel in cases where
procedural or legal problems may be arising. 35 The legal adviser’s role includes a
duty to identify points which might assist the absent practitioner. 36 The courts
have confirmed that in some cases the advice of the legal adviser must be
disclosed and the defendant should be given an opportunity to comment on such
advice in order to afford the equality of arms required by Article 6 of the European
Convention on Human Rights. 37
9.40 Some regulators make provision for the appointment of other advisers, such as
specialist performance advisors at the General Medical Council. 38
Provisional view
9.41 In Part 4 we provisionally propose that the existing systems of statutory
committees should be abolished and instead the regulators should be able to
determine their own governance arrangements, including a power (but not a duty)
to establish committees. However, the main exception to this approach is in
relation to Fitness to Practise Panels where we think that the law should be more
prescriptive. 39 We propose that the statute should require each regulator to
establish Fitness to Practise Panels of at least three members for the purpose of
adjudication. This reflects the importance of such hearings and their significant
impact potentially on a professional’s ability to practise. Although not a strict
requirement of Article 6, the establishment of such Panels has a long history in
health care professional regulation and has the advantages of efficiency, expert
knowledge and expedition.
9.42 In addition, we think there are some matters which should be consistent across
33 See, for example, Nursing and Midwifery Council (Midwifery and Practice Committees)
(Constitution) Rules Order of Council 2008, SI 2008 No 3148, r 6(3).
34 See for example, General Dental Council (Fitness to Practise) Rules Order of Council
2006, SI 2006 No 1663, rr 63 and 64.
35 R (Sinha) v General Medical Council [2008] EWHC 1732 (Admin).
36 Compton v General Medical Council [2008] EWHC 2868 (Admin).
37 Nwabueze v General Medical Council [2000] 1 WLR 1760
38
General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 No
2608, r 14.
39
The other exceptions are in relation to interim order hearings and review hearings, which
are discussed later in this Part.
167