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The Secretary of State rightly paid tribute to the three Members of the House who serve on the GMC as lay members. I suspect that it is not widely known that serving in that capacity involves all three of them in a lot of hard work. Their contribution to public service should be commended and I endorse what the Secretary of State said. The Bill will require an increasing lay involvement in the General Medical Council's affairs. The Patients Association, among other organisations, has properly expressed concerns about the training of lay members of the GMC assessment panels. It is important that lay members are properly trained and have experience in handling patients' complaints. The history of the involvement of the laity under the Conservative party's management of the national health service has not been untainted or unencumbered with criticism. I hope that we can achieve a laity for this function which is absolutely beyond criticism or the suggestion of being tainted with party- political partisanship. That could not be said about the laity in the rest of the national health service.The Committee will want to explore with the Minister its concerns about the tremendous power of the initial GMC screener to sideline serious complaints, or at least to assess their importance. The screener will have an important role in either accelerating complaints through the complaints procedure or delaying consideration of them. Justice delayed is justice denied, which is precisely the issue that we are trying to remedy. So some attention to the role of the screener acting on behalf of the GMC is important.
The Secretary of State said that the Bill allows voluntary removal from the register. I wonder whether that will allow errant doctors to remove themselves from the register rather than face up to the charges brought against them. If they behave in such a way, will they then be able to request reinstatement later? I should like to explore further with the Minister precisely how voluntary removal will interact with the other proposed procedures.
The Patients Association is not alone in suggesting that a system of regular compulsory reaccreditation should be introduced as an effective means of weeding out incompetent doctors. I shall not give a view on that proposition now, but that idea is worth exploring, alongside the other provisions in the Bill. Whichever arrangements we adopt for the Committee, I hope that we will be able to do just that.
The BMA has expressed concern that, under the new system, general practitioners will have to pay for their own retraining. The Opposition want to explore the cost implications of that with the Minister. I believe that a possible inequity could be created if GPs have to pay for their own retraining while doctors who are employed by hospital trusts, or junior doctors employed by the regional department of the Department of Health--if I understand the Health Authorities Bill aright--will have their retraining paid for them.
Mr. Gareth Wardell: I am concerned about equivalence. To what extent does my hon. Friend agree or disagree that doctors are being considered differently in terms of their performance in comparison with the way in which other professional bodies consider the performance of their members? Does my hon. Friend agree that the Bill could be judged overgenerous and to
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be bending over backwards to the medical profession, given the extent to which the GMC may go to protect doctors from removal from the register? That is at odds with the way in which the performance of teachers, lawyers, accountants and other professionals is dealt with. Is my hon. Friend happy that a even hand has been dealt across the professions?Mr. Brown: My hon. Friend, who speaks from experience as he serves on the GMC, makes an important point. I am absolutely certain that the principle underpinning the Bill is right. We are introducing a new procedure, so only time will tell how it works in practice. I would not want to do the Bill an injustice before giving the provisions contained in it a chance to operate. I accept, however, that the Bill creates an anomaly, given the way in which one professional group is treated as opposed to another.
The Minister for Health (Mr. Gerald Malone): In response to the hon. Member for Gower (Mr. Wardell), as I understand it from the GMC, it is not the purpose of the legislation to seek to remove doctors from the register. That is the sanction of final resort. I am sure that the hon. Gentleman is aware that the purpose of the Bill is to provide proper opportunities for retraining so that matters can be put right and people can be put back on the proper professional course. I am not certain whether one can make an analogy across the professions. I know from my own profession--at least when I practised it 10 years ago--that there was a continuing system of post-qualifying education. That example may serve as an analogy, but it need not be the case that the professions are on all fours with each other.
Mr. Brown: The Minister seems to have taken the point made by my hon. Friend the Member for Gower (Mr. Wardell) and put it back to him. I shall say something later about the anomalies that the Bill is creating between different professions inside the health service. It should be possible to obtain a commitment in principle from the Government at least about the professions inside the NHS.
Mr. Gunnell: The argument put by my hon. Friend the Member for Gower (Mr. Wardell), who serves on the GMC, is strengthened by our call for a general social services council and a general teaching council, which would run on the same lines as the GMC. We believe that the GMC functions well and that it would be to the benefit of other professions and the public if similar arrangements applied to teaching and social work.
Mr. Brown: My hon. Friend is undoubtedly right. The Bill is underpinned by the concept of professional self-regulation. The Bill places emphasis on retraining rather than immediate disciplinary sanctions. The Secretary of State and I have expressed some concern, however, about whether the emphasis on retraining, further retraining and yet more retraining might not be overgenerous to the medical profession. It would be better to wait to see how the Bill works in practice rather than fail to give it the fair wind it was promised in the Queen's Speech.
The Minister spoke about the internal arrangements governing his own profession. As I understand it, an allowance is paid for the postgraduate education of GPs. They receive £2,000 a year for undertaking 30 hours or
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more of approved study a year. Some concern has been expressed about how that system operates in practice, and whether there are any sanctions against doctors who do not undertake that 30 hours of study. I should like to explore that in Committee, because I do not expect the Minister to offer an opinion on that on Second Reading. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting investigates cases of misconduct. The GMC, however, only investigates cases of serious professional misconduct. The Bill will allow it to consider cases of seriously poor performance. The nurses' professional body will, therefore, still have a wider remit than the GMC. As my hon. Friend the Member for Gower has said, the Bill creates an anomaly between the powers of the GMC and the powers of other health care professional registration bodies.The GMC currently investigates cases according to the key test of serious professional misconduct--to be amended by the Bill--as do the General Optical Council and the General Dental Council. The nurses council investigates cases of misconduct, so it obviously adopts a wider criterion than that adopted by the GMC. The Council for Professions Supplementary to Medicine investigates cases according to its test of infamous conduct in a professional respect. I suspect that it is difficult to prove that and that that test is overdue for review. The osteopathic and chiropractic organisations investigate cases of unacceptable professional conduct. I understand that the Royal Pharmaceutical Society investigates cases of misconduct, but I may be wrong about that. I am, however, fairly certain about the other bodies that I have mentioned.
The practice adopted by the respective councils is anomalous, so when the Minister replies to the debate perhaps he can tell us whether it is the Government's intention to introduce legislation so that the procedures governing other health care professional registration bodies are brought into line with those now proposed for the GMC. It seems anomalous that one professional body should decide to launch an investigation according to one test, while other professional bodies that deal with related health care functions act according to a more serious test. I am sure that the Minister has given that matter extensive consideration, or at least someone has, and that the hon. Gentleman will have a response ready for the end of the debate.
Perhaps it is right to give the last word to the chairman of the BMA; after all, he represents health care professionals. In September 1993 he said:
"We need to retain the full confidence and trust of our patients. But we must remember that the Government can play a significant part in all this by reducing stress, raising morale, instilling realistic patient expectations, listening to the profession's concerns about the reforms and ensuring a consensus approach to the problems facing us."
I endorse every word of that.
It is ironic that on a day when the BMA, representing junior doctors, wins a case in the courts concerning the stress connected with junior doctors' hours of work, we are considering legislation on professional standards. It does not sit easily for the House to expect doctors, especially junior doctors, to work very long hours and still, at the end of those long hours, perform to the highest professional standards. The fact that on the whole they do so is a great credit to the profession.
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The ethical base of the national health service is its foundation and its enduring strength. It is its ethical base that has enabled it at least to come through, if not wholly to survive, the Government's health reform agenda. I support the Bill, but perhaps not quite in the same spirit as the Secretary of State.5.11 pm
Dame Jill Knight (Birmingham, Edgbaston): I have read the Bill, and the papers pertaining to it, with great care, and I have several questions in my mind about the effects of the legislation. We all rely on the excellent service that we receive from the research department of the Library, and I turned with great interest to the research paper on the Bill that that Department produced. On page 4 of the paper I saw encapsulated the reason for the Bill:
"To date, unless it has been found that a doctor's fitness to practise has been seriously impaired by ill health, or unless a doctor has been found guilty of serious professional misconduct or convicted of a criminal offence, then the General Medical Council has no power to act against an individual practitioner. In particular, the GMC is not at present able to act either where a doctor's professional competence in general is shown to be inadequate, but no single act has been committed which could constitute `serious professional misconduct', or where a single act has indeed been committed, but is not judged to constitute `serious professional misconduct'".
"So," thought I, "that is what the Bill is about, is it? I see. That is very interesting." I agreed that there was clearly a need for the Bill. However, when I turned to the Bill itself, twice in the first two paragraphs of the explanatory and financial memorandum I saw the phrase "seriously deficient". So the measure refers not to a slight problem but to practice that is seriously deficient. As every Member of the House with any experience knows, the nub of a Bill is always in clause 1--and in the first few lines of clause 1 the term "seriously deficient" appears again. So I come to my first question: how is it to be decided whether a performance is "seriously deficient", and is not such practice covered to some extent by the GMC already? If so, does the Bill not seek to do something that will not happen?
The hon. Member for Newham, South (Mr. Spearing) deserves great credit for consistency, in that he has worried about the problem for a long time and has introduced no fewer than six private Members' Bills on the subject. The hon. Gentleman has highlighted one instance that made him anxious--the case of a child in his constituency who had died of meningitis after his GP could not be bothered to examine him. Apparently the GMC found the facts to be proven but, amazingly to me, it felt that the charges did not amount to serious professional misconduct. If that is not serious professional misconduct, it is difficult to think what would be.
There is clearly a case to be made that we should go wider than the present powers of the GMC. No doubt we shall hear later the views of my hon. Friend the Member for Chislehurst (Mr. Sims) and of the hon. Member for Gower (Mr. Wardell); they are both members of that body. But there is certainly a case that we should go further than the GMC can go at present.
However, I am worried because the Bill confines its attention to "seriously deficient" performance, and we still have to ask whether it is considered seriously deficient if
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a doctor feels too busy and cannot be bothered to examine a patient, who subsequently dies. My first question is: on what ground do we decide what is seriously deficient?Would the doctor's behaviour have to result in death? Bearing in mind the case that I have described, perhaps that criterion would not be enough. Or, as some of the community health councils would have it, are there many lesser evils being perpetrated by doctors that should be dealt with at once? Not long ago, a questionnaire was sent to patients of a practice asking whether the magazines in the waiting room were up to date or whether they were dog-eared and had been used too much, and also whether the car park was sufficient for all the patients. I would not call failings in that respect seriously deficient, and I am sure that they are not what the Bill is intended to address. One sometimes needs to watch what the community health councils get up to with the money that they are allocated. I wonder whether language inability would count as seriously deficient. A great many doctors have come to us from other countries, and there is no doubt that they serve the health service well. But patients often need to describe their condition using nuances of language that a doctor insufficiently competent in the English language cannot comprehend. Will that come under the same heading? Page 7 of the Library research document tells us that the procedures
"will not be confrontational like the conduct procedures, but will rather resemble the health procedures, in which only cases where a doctor has refused help actually go before the formal Committee." I should like to know what that means, and how cases will come before the committee.
We have heard a lot about retraining, and I understand that to mean retraining for doctors who are providing a seriously deficient service. But I am not sure whether retraining will help in the cases that some of us have in mind. Suppose, for instance, that a doctor were, as we describe it in the House, "tired and emotional". Suppose that he did not treat his patient properly because of his weariness and his emotional state--helped, perhaps, by gazing upon the wine when it was a little too red. How could one retrain someone in a case such as that?
Mr. Sam Galbraith (Strathkelvin and Bearsden): It might help the hon. Lady if I said that perhaps such a case would be referred to the health committee, not the professional competence committee.
Dame Jill Knight: I am grateful to the hon. Gentleman, who knows, as a medical man, some of the problems that confront us here. However, I am trying to find out precisely what the Bill will do, precisely which cases it will affect and the precise way in which those cases will be handled.
When I first read the Bill, I wondered--and I hope that I may be right about this--whether, if the object of the Bill was achieved, it would avoid, or at least lessen, the ruinous and expensive business of litigation involving doctors. That is growing, without any doubt, and the implications are extremely serious. One has only to consider the United States to be aware of how very damaging it is for members of the medical profession. It is damaging because of the huge costs of medical
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insurance. I understand from friends of mine in the medical profession that that is now beginning in earnest in Britain. Let no one here suppose that I am over-emphasising that.I am assured that American doctors must set aside an enormous sum in insurance payments to indemnify themselves, and things are already moving in that direction in Britain. Slick lawyers in America actually follow ambulances, or comb the sensational press for horror stories of patients, who may perhaps be used to start litigation. In addition to cost, there is an extra burden of worry for the doctor when the threat of litigation hangs over him. Does the call in the middle of the night really involve a serious condition? Mrs. Jones has phoned for no real reason on numerous occasions. Will she sue me if I do not get up, get dressed and go and see her now? How am I to know how bad her condition is?
It is in the interests of good doctors, who make up the overwhelming majority of the profession, that machinery should be in place whereby the tiny minority of bad doctors may be brought to book for wider reasons than those that are available at present. After all, doctors have an immense power over people's lives, and we should not forget that. We should recognise that what they say to their patients and the way in which they treat their patients can have a wide effect on patients' lives.
Subsection (9) of clause 1 states:
"While a person's registration in the register is suspended by virtue of this section he shall be treated as not being registered in the register notwithstanding that his name still appears in it." I read that two or three times, with increasing puzzlement. The name will not be removed from the register, but one will have to pretend that it is not there. How will people know that it is invisible when it is visible? That is a trick that I have not yet managed to solve.
I realise that it might be jolly expensive to remove names and replace them after a time, but surely we could have little stickers or something. Let us suppose that a doctor has been removed from the register technically, but not actually, and that he goes away and applies for a job as a locum, hundreds of miles away. When the doctors who are considering employing him consult the register and find that his name appears on it, how will they know that he is not really there, if he does not tell them?
I do not understand how that will work.
Mr. Gareth Wardell: I believe that the hon. Lady and I share anxieties regarding clause 1(9), because it is strange that it says:
"While a person's registration in the register is suspended by virtue of this section he shall be treated as not being registered in the register notwithstanding that his name still appears in it." As the hon. Lady rightly says, unless some sign is given that will be understood by anyone who has access to the register, it may be difficult to know the status of that doctor.
Mr. Galbraith rose --
Dame Jill Knight: Does the hon. Gentleman wish to intervene?
Mr. Galbraith: I understand that, when one seeks a job, one must oneself provide evidence of one's registration. It is not checked up on. That would not be
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provided to one by the General Medical Council if one was not registered, even though one's name was on the register.Dame Jill Knight: That may be the case. Nevertheless, I do not quite understand how it would work in the case of a doctor who wanted temporary employment while perhaps he was debarred from practice in his own part of the country. I am still by no means sure that that subsection quite makes sense. I want to know a little more about the way in which it will work.
I also want to know whether the patient would make the complaint. If not, who would it be? That does not appear to be mentioned. If the doctor were on a practice list, would he be barred from practising or would he receive retraining only? I am not sure about that. How long would he or she have to wait for a verdict?
I confess, I would much prefer that something were done in the Bill to speed up what I consider to be a terrible way of conducting a specific part of the disciplinary procedure, when a surgeon or doctor is accused of a serious offence. No fewer than three such cases have been brought to my knowledge, one by a constituent. He was an anaesthetist who was accused of misconduct during an operation, and he waited for three solid years for the verdict to be reached. All that time, he was paid his full salary and stayed at home, doing absolutely nothing.
I am worried about that. I have mentioned the subject in the House previously, and I regard it as a matter of immense concern, not least because of the money wasted to the health service by that type of thing.
It is also devastating for the accused person, such as the constituent whom I mentioned. Granted, he received his full pay--which he did not want to take because he said, "I am not earning this." However, the matter worried his wife so much that she subsequently became ill and died. In the end, he was found not guilty. How in heaven's name can we deny quick justice and a quick verdict in cases such as that?
I know that it must be a difficult matter for my right hon. Friend the Secretary of State, but because of the waste of money as well as the waste of a man's work and the effect on that man and his family, I should dearly have liked to read in the Bill about a speed-up of the means by which a verdict could be reached in cases of that nature.
The aim of the Bill is excellent. I understand exactly why it came into being. I am sure that it is meant to be, and will be when it has been through Committee, one more improving step for the health service.
Since I have been in the House--in fairly recent years--the patients charter has come into force. In my region, there has been an incredible reduction in waiting lists, which has served my constituents and the people of my area brilliantly. The health service that we see around us has never been so good and has never treated so many people so well, with so many complicated operations, treatments and drugs. We should be thankful for that.
However, I know that my right hon. Friend's constant anxiety is to improve, improve, improve, all the time. That is the intention behind the Bill. I know that my right hon. Friend will not mind that I asked her questions which I feel must be answered if the Bill is to achieve its aim.
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5.29 pmMr. Jim Cousins (Newcastle upon Tyne, Central): It was that wise old Scot, Adam Smith, who said that when two or three were gathered together a conspiracy was waiting to happen. I take a more pessimistic view of the Bill and of the idea of self-regulation than my hon. Friend the Member for Newcastle upon Tyne, East (Mr. Brown). Self-regulation is nothing more than institutionalised conspiracy. That is not a specific point in relation to doctors, but a general point that we have to wrestle with in the Bill and elsewhere. Any system of rules must be capable of clear and robust implementation. The terms used to support the system of rules must be capable of being clearly understood, both by those who use the rules for their benefit and by those who apply the rules.
Rules cannot be adequately measured by the kilo or the cubic metre. The Bill lays down complex procedures. It provides a tangled framework which will create yet more conventions and practices, but it does not give us the clear definitions that the hon. Member for Birmingham, Edgbaston (Dame J. Knight) was rightly trying to establish. What is "serious"? The Bill takes us no further forward: it simply repeats the entirely inadequate terms of the existing structure of rules. It compounds the uncertainty by this time attaching the word "serious", not to misconduct, but to deficient performance. That will confuse the issue still further.
There is no focus behind the system of rules because there is no clarity on the definition of "serious". What is a serious failure of professional performance? The Bill simply does not tell us. It uses the phrase and introduces the concept into our procedures, but it provides no clarity about what it means. In that respect, it is a classic product of self- regulation. Self-regulation will always seek to multiply and mystify. When we add to the idea of serious professional misconduct the concept of a seriously deficient performance, the result is precisely that multiplication and mystification.
The Bill does not offer openness: it offers the promise of openness, which is entirely different. The seven potential stages of inquiry, assessment and counselling before the professional performance committee even meets provide further grounds for multiplication, mystification and uncertainty for everyone involved. That provides the maximum opportunity for old-boy networks--or, indeed, old-girl networks--to come into force.
Lest anyone should think that I am being unduly pessimistic, I shall quote at length--because it is powerful stuff--an article in the British Medical Journal which was written by the chief executive of the Northern and Yorkshire regional health authority. Professor Liam Donaldson, who is a distinguished doctor--
Mr. Malone: Before the hon. Gentleman moves on to the article, I cannot let pass without comment the assertion that phrases such as "serious deficiency" show that there is a conspiracy. Which tests in any legislation governing the law of England, Scotland or Wales are not capable of a number of interpretations? The hon. Gentleman suggests that such standards are unusual, but I suggest that they are not. There is nothing unusual in including such a test, which has to be subject to interpretation, in a Bill of this kind.
Mr. Cousins: The Minister makes a proper and fair point. To guide us as to what constitutes serious
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professional misconduct under the existing disciplinary procedures, the General Medical Council's blue book advances several different tests. Some of them, such as not advertising doctors' services, are happily practical. That is the sort of wonderfully practical and specific measure that one always finds in such cases. The 39 articles of the Church of England contain the marvellous phrase, "Cursed be he who moves his neighbour's landmark." Among the greatest mystifications, practical matters can intervene. But the main test in the blue book is as follows:"Neglect or disregard by doctors of their professional responsibilities to patients for their care and treatment". I invite the Minister to consider how that can be clearly distinguished as a test from any definition which could be given of seriously deficient professional performance. There is a problem. Let us return to the thoughts of Professor Donaldson. I shall quote from his article extensively because it is so illuminating. One section of the article is called, "Closing Ranks". It states: "Among managers I found general resentment arising from the perception that doctors are so heavily protected and that they seem to be privileged compared with other groups of staff . . . doctors' colleagues were often willing to report concerns confidentially and informally"
but
"they were extremely reluctant to go on the record. Some considered that this would amount to disloyalty"
and others feared legal action. He continues:
"The most difficult and time consuming cases to resolve were those in which a doctor's attitude and behaviour were disruptive or highly unreasonable. So serious did this become in some of the cases I describe that clinical departments were almost brought to a standstill. The resulting poor communication, the absence of teamwork, the atmosphere of hostility, and the poor morale could not, in my view, have been other than detrimental to patient care."
Those are the words of a regional chief executive, who has used the procedures available to him and been entirely unable to resolve those problems.
Professor Donaldson continues:
"Judgments about poor attitude and unreasonable behaviour are difficult to convert into evidence which could sustain an action for professional misconduct or incompetence."
He continues in a way that is relevant to the procedures advanced in the Bill. He states:
"In several cases the problems remained and were little improved by the process of investigation and counselling."
That is the authoritative voice of a man who has sought to examine many cases in which precisely the issues to be covered by the Bill would have been involved.
Professor Donaldson concludes:
"My experience of dealing with problem doctors"--
that is the regional chief executive's phrase, not mine-- "over many years leads me to reflect that it is difficult, distasteful, time consuming, and acrimonious work. For these reasons the temptation to avert one's gaze from these problems is at times very great. Add to this the nature of the present NHS disciplinary procedures and I have no doubt that many employers do look away when they should not."
He goes on to throw some doubt on whether the terms of the Bill will be adequate to deal with the problems that he recognises. His summary is that the procedures within the NHS are inadequate to deal with serious professional problems of that kind.
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I do not want to take up the time of the House unduly, but in order to throw some light on the matter and to see, not how the rules can be laid down, but how they can be policed, I wish to share with the House one of my own experiences. I tried to discover whether a particular surgical procedure used in relation to an unpleasant sort of cancer affecting women could be carried out without the benefit of histological confirmation by biopsy. The treatment involves radical surgery and its effects are mutilating.In my attempts to investigate the matter, it took me six months to extract a letter from the Royal College of Obstetricians and Gynaecologists. The letter states:
"All clearly state that"--
the particular sort of cancer which I do not want to name-- "should be confirmed by biopsy prior to surgical treatment. Whilst the College Council have not discussed this topic, on a personal basis I would not do"--
the procedure--
"without histological confirmation of the cancer."
However, such treatment could possibly be given because the royal college has no policing mechanisms in place.
I put the same point to the Royal College of Surgeons. Sir Norman Browse, the president of the Royal College of Surgeons, replied: "The view of this College and of myself personally is that no treatment should be offered a patient--especially any form of mutilating surgery--without full knowledge of the diagnosis. This implies that histological diagnosis should be obtained in all cases, whenever possible, before proceeding to surgery. I do not think there are any surgeons in the UK who would perform"--
the procedure is then named--
"without histological confirmation of the diagnosis."
Again, there is no acceptance of responsibility for policing. I then contacted the General Medical Council to discover whether, within the terms of its disciplinary procedures, it is responsible for policing. It replied that it did not fall
"to the GMC to advise doctors on matters of clinical practice in specific situations. This is a function of the Royal Colleges". But the royal colleges themselves say that they are not prepared to exercise that policing function.
It is a grim and sorry state of affairs when we cannot establish whether such radical, potentially mutilating surgery can be carried out on women only when confirmed by biopsy or achieve a situation in which such a procedure can be established. That must rank--potentially, if it were proved--as a matter of serious concern.
Indeed, the matter raises serious issues of patients' rights in terms of informed consent because the NHS management executive's rules, which I wholly support and endorse, indicate that patients should have such rights. Unfortunately, the responsibility for informing patients of the procedures to be carried out on them lies with the doctors and surgeons themselves. We are going around in circles because there is no procedure in the NHS which can fulfil that requirement.
I understand that a case involving precisely that issue has been laid before the GMC, and there it has remained for many months. I accept that that is not the Minister's responsibility, but it is an important test of the concepts of serious misconduct and serious deficiencies in
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professional performance. If we are to discover what "serious" really means, issues such as the one that I have raised should themselves be taken seriously.I hope that the Bill will advance a new channel for clarifying those issues and I look forward to the proceedings of the Committee.
Mr. Malone: Before the hon. Gentleman finishes, I should make it clear that the GMC has made it public that it will look at the definition of "serious" and will set that matter out in clearer guidance.
The hon. Gentleman is making a bit much of the suggestion that we are engaged in some sort of conspiracy. When three are gathered together, it might be a conspiracy. Is the hon. Gentleman suggesting that the GMC is some sort of conspiracy? When 102 are gathered together and 54 of them are doctors appointed by the royal college and 13 are lay people nominated by the Privy Council, I suggest that that would be quite a conspiracy. I do not think that the hon. Gentleman's theory holds.
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