Health and Social Care Bill

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Mr. Denham: The difficulty is that it is possible to have a category of practitioner, for example a doctor, who is allowed to practise with or without restrictions by his professional body, but whom the NHS, as an employer or contractor, would not wish to have working for it. There are many professions in which the professional body allows individuals to practise, but that does not oblige an employer to give them jobs. It is possible to conceive circumstances in which somebody who was allowed, on professional grounds, to practise as a health professional by his regulatory body might not be seen as suitable to work in the NHS because other aspects of his conduct fell outside those grounds. However, it is possible that that person would be offered a job in the private health sector. This system gives greater protection by allowing the NHS to take its own decisions.

There is a need, in practice, for the health service to be able to move quickly in response to problems that become apparent, without being dependent on the action of a third party. We are watching the discussions in the General Medical Council with interest. The council already has a president who is committed to tackling the backlog of cases on disciplinary action that have built up, and we look to that to be successful. Wide-ranging discussions are taking place on the reform of the General Medical Council, but it is inherently unsatisfactory for the NHS, as a provider of health services in Britain, to depend on the action of another body in order to deal with a disciplinary or other problem that could threaten patients. We look to the professional bodies to perform to the highest possible standards, but that does not obviate the need for these measures.

Mr. Hammond: I am surprised that the Minister has given that explanation. When we considered the Care Standards Act 2000, I thought that the Government had grasped that they have a responsibility for maintaining standards across both the private and the public sector. However, he is now arguing, ``A doctor might not be good enough for the NHS, but he could still work in the private sector.'' Can he give an example of a situation where a doctor might properly and legitimately be expected to be competent to practise in the private sector, but not good enough for the NHS? How can the Government properly discharge their responsibility to maintain standards across both sectors, but allow that doctor to practise in the private sector?

Mr. Denham: The NHS might not wish to employ somebody who has a record of fraud against it. A different employer might take a different view about whether that person should be employed. Depending on the circumstances of the fraud, neither opinion would relate directly to his clinical competence as a doctor or other health professional. I hope that the hon. Gentleman accepts the validity of that distinction.

Dr. Peter Brand (Isle of Wight): It is helpful to be able to ask the Minister questions as he goes along.

I appreciate that the Minister would want the list to be more NHS-specific than the General Medical Council's list, but I do not see why it should involve any local variation. I understand that once a person is on the supplementary list of one authority, they automatically appear on the lists of others. Why should not principals be in the same position?

2.45 pm

Mr. Denham: That is likely to apply in the vast majority of cases. The FHSAA has the power to say on application that a person should not be on a list anywhere, and a health authority will know if they have been turned down somewhere else and will take that into account. It is conceivable that in certain circumstances the FHSAA would not consider the reasons for a person's disqualification from a local list to be sufficient grounds for a national disqualification. However, that is unlikely to lead to huge inconsistencies in treatment of individuals or of differing standards between one health authority and another.

Dr. Brand: It may not lead to inconsistencies in treatment, but it will certainly lead to a burden of administration and bureaucracy. A great delay will be built into the system by which someone moves from one health authority to another. If they have the approval of one health authority, they should be eligible to apply for jobs elsewhere without going through a bureaucratic process.

Mr. Denham: We had the option of replacing the current system of health authority lists. At the moment, someone who moves from one practice to another moves from one list to another—that transfer process already exists. Having considered the creation of a single national list for all GPs, we decided instead to build on the current system of health authority lists, while applying a more satisfactory test. That is the best way forward. No obvious body is capable of holding a single national list of GPs, and we would have had to create one for the purposes of the Bill.

Dr. Brand: I am aware of the current system, but the Bill introduces something new in that suspension from one list will mean suspension from all other lists. The negative powers should be balanced against the positive powers.

Mr. Denham: In practice, being on one list does not confer an automatic right to move to another one. However, if a practitioner who had not been subject to disqualification applied to move from the list of health authority A to that of health authority B, it would be extremely difficult—unless some new material fact came to light about their past practice or record—for health authority B to refuse them admittance to its list without immediately facing an appeal to the FHSAA. Although that is short of an absolute legal right to move from one list to another, a little consideration of how the system will operate suggests that it would be difficult to introduce hugely arbitrary variations.

I turn to amendments Nos. 170 to 174 tabled by the hon. Member for Woodspring (Dr. Fox). The Bill introduces the concept of unsuitability. Although that is a broad term, I have illustrated the way in which we would require health authorities to consider action under the clause.

Amendments Nos. 170 to 174 take a different approach by seeking to include a definition of unsuitability. In preparing the Bill, we considered carefully whether to follow that approach by including a definition or setting parameters. We decided not to do so for a number of reasons, although there is an important qualification that I shall discuss in due course. There is a risk that, in time, any definition could prove over-prescriptive, and health authority powers could thereby be too narrowly or inflexibly drawn. As a result, cases could arise where, in everyone's view, action was necessary but could not be taken.

The issue of suitability extends beyond establishing whether a practitioner is qualified, or whether the health authority can prove that the practitioner would be a direct danger to his patients. All available information should be examined, and a decision on suitability for the job should be reached using criteria familiar to any employer. Health authorities should examine the available information and consider whether the practitioner in question has the qualities and attributes suitable to deliver medical, dental, ophthalmic or pharmaceutical services to our population.

There is considerable precedent for reliance on a broad term that is undefined in primary legislation. For example, employment rights legislation gives individuals under threat of redundancy the right reasonably to refuse their employer's offer of alternative employment if the post in question is not suitable. That legislation leaves ''suitability'' undefined, but over the years courts and tribunals have developed a body of case law. In practice, we envisage that the Family Health Services Appeal Authority will play a similar role.

Mr. Hammond: I am sure that the Minister realises that we did not invent on a rainy Thursday evening the definition of unsuitability that amendment No. 174 would insert—it was taken from the Medical Act 1983. Does the Minister consider that definition too narrowly drafted, and does he plan to change it?

Mr. Denham: If only the hon. Gentleman had listened when I said that there was one important qualification that I would discuss in due course. In fact, I am coming to it just about now.

Although we are discussing clause 22, it is important to distinguish between the different roles of various clauses, such as those on refusing or permitting admittance to the list, removal from the list—which we shall discuss later—and suspension from it. In my view, the grounds for refusing admission to, or removing someone from, the list need to be sufficiently broad to capture all cases that might arise. Suspension, however, is a different process. Given its nature, suspension should be a neutral act. It is undertaken when serious allegations have not been proven, or while further investigations take place.

It is relevant to recognise that the wording of amendment No. 174 is drawn from a particular part of the Medical Act 1983. That wording is the test that should be applied by the GMC's interim orders committee, under which interim suspension orders can be made. I think it a good idea to import that wording into the clause dealing with suspensions. It sets a helpful precedent, and has attractions in defining the circumstances in which suspension might be appropriate. The wording captures both the notion of a risk to the patient, and that of a wider risk to the NHS or the public good.

I should like to signal now that when we discuss clause 26 we shall propose to adopt the wording of the amendment as the basis for a Government amendment to be tabled on Report, which will set out the circumstances in which a health authority may suspend a practitioner. That will leave this clause with a similar architecture of health authority powers to those in the Medical Act 1983. The test on suspension would be the wording used by the hon. Gentleman in his amendment.

The test for disqualification, removal and refusal to admit to a list will be a broader power. When the professional conduct committee of the General Medical Council decides whether to disqualify a practitioner, the grounds for serious professional misconduct are broader than those used for suspension. I hope that the hon. Gentleman will accept that we have recognised the force of his argument—if not in relation to clause 22, then certainly in relation to the suspension powers in clause 26. We shall table an amendment on Report to reflect that.

I now turn to the Government amendments. Amendment No. 116 introduces provisions to underpin the application process for medical lists. It provides for regulations setting out information that a doctor on the medical list must provide. We intend that those regulations will largely replicate health authority procedures. They will include matters such as medical and vocational qualifications, career history, declarations on criminal convictions and adverse regulatory body judgments, and references, which is all information that any good employer would require from someone seeking work. Being clear that we will make that check will deter dishonesty.

Amendment No. 117 addresses consistency. The Bill already provides for health authorities to refuse applications to join supplementary and services lists in certain circumstances. There would be no logic in providing grounds by which a person could be refused admission to the supplementary and services lists that did not equally apply to decisions by health authorities on admission to their existing medical list. The amendment clearly and unambiguously provides the means of introducing that.

The amendment also provides grounds on which a health authority could defer an application—for example, where it was known that the applicant was facing a criminal charge that would be likely to make him unsuitable to provide general medical services were he found guilty. Furthermore, the amendment allows regulations to be made to allow the Secretary of State to prescribe circumstances where a person cannot be admitted by a health authority to its medical list—for example, where the person had been convicted of murder or sentenced to more than six months' imprisonment.

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