Health and Social Care Bill

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Mr. Hammond: The hon. Gentleman emphasised the fact that suitability as a partner in the practice should be a decision for the other partners. Does he agree that that abrogation of that power to the health authority looks suspiciously like yet another attack on the independent status of GMS contractors?

3.15 pm

Dr. Brand: That is why I am worried about the effect that clause—even with the amendments—may have on the way in which practitioners are distributed around the country. I want everyone to have an equal opportunity to apply for partnerships in all parts of the country. Creating the artificial device of having suitability determined by a health authority, rather than by the people who have to work with the partner that they are appointing, cuts right across the concept of partnership and independent contractor status. In the case of directly-employed doctors, the health authority would be acting as an employer so suitability criteria are applicable.

On another minor issue, can I check with the Secretary of State that clause 22 and the subsequent clauses apply only to medical, dental and ophthalmic practitioners? If so, where does that leave practices that are led by nurses? Are we likely to see a situation where an unsuitable person may be in charge of a practice, but cannot be removed from a list or any arrangement of that sort? I have never quite understood the accountability relationship between a nurse-led or lay-led practice employing doctors. Who is the responsible person in that instance?

In the Care Standards Bill we made it quite clear that the employing body, for instance a cosmetic surgery clinic, had a responsibility for what happened in that clinic and it was not only the doctors who were accountable. I cannot see how the Bill addresses that issue.

Mr. Denham: I shall endeavour to deal with as many of those points as possible. The hon. Member for Runnymede and Weybridge asked, quite reasonably, was why the Government found it necessary to table so many amendments so late in the proceedings. As I said the other day, it is regrettable.

The essential issue that influenced the drafting of the Bill has been some ambiguity in the extent to which it was necessary to take primary legislative powers in order to establish the lists that are under discussion. We decided—rightly, I think— that it would be clearer and more secure to take primary legislative powers, and that is what we have done. However, the timing has meant that some amendments, particularly those that seek to ensure consistency across the different categories, were tabled later than I would have wished.

The process means that there has been considerable discussion on various elements of the lists, the criteria and so on with the BMA and other relevant bodies, pre-dating the final drafting of the legislation—although I do not want to give the impression that all those negotiations and discussions are complete.

A number of issues have been raised including whether the provision will lead to greater inequality. I do not believe that it will. I think it will be clear that all health authorities have to act with natural justice and in a fair and proper manner in order to meet the definition in the Bill in respect of suitability for inclusion on the list. The appeals authority is there to back that up.

It is greatly to the advantage to primary care services for health authorities to know—much more unambiguously than in the past— that they have a direct responsibility for maintaining standards and for taking responsibility for whether practitioners are on their lists. I believe that some of the problems that arose in the past stemmed from a feeling in health authorities that although they maintained lists, those lists applied only to some of the practitioners and it was never quite clear who was responsible for the rest. They felt that perhaps the GMC ought to sort it out, and that the NHS tribunal involved quite a complex process. The lack of front-line responsibility for the quality of doctors and other health professionals working in a health authority area is a significant weakness. This Bill represents an important step forward.

The hon. Member for Runnymede and Weybridge quite fairly said that it was a bit poor for Ministers to put a measure before the Committee without being able to think of a single worked example to illustrate it. However, he will understand my caution with worked examples because there is always a residual fear that in 10 or 15 years' time a High Court judge will look back through the Committee Hansard , pull out an example and say, ``That is the precise definition of what the law was meant to say because it is what the Minister said on the day''.

So there is a natural nervousness in doing this, and I will heavily preface what I am about to say as a purely illustrative example of what might happen. Let us suppose that a GP ran into difficulties in one local area because, as the owner of a nursing home, it became apparent that his referral practices were unduly influenced by his financial interests in the nursing home. It is possible that, after proper investigation, that led to his subvention and disqualification from a health authority list. It might be that the appeal authority, while considering that that was a perfectly reasonable decision for the health authority to take in that particular case, felt that there were some local peculiarities in respect of that health authority, that GP and that set up, which would not necessarily lead to a national disqualification. It is therefore possible that another health authority, in an area where the individual concerned had no financial interests, would take a different view. I have to be careful about saying whether that sequence of events would happen or whether that is precisely the right example, but it serves to illustrate how it is possible for the system to operate in that way.

Dr. Brand: I fully accept the Minister's reminder that we are not here to judge a particular case, but his hypothetical example suggested a reason not to have someone on a local list, and there have got to be jolly good reasons to do that. If the reasons are good—if there were corrupt practices, which are against the regulations as they are at the moment—they should be grounds for a national disqualification. I really cannot accept the Minister's example.

Mr. Denham: It would probably not do us much good to pursue the hypothetical example to its final conclusion, but it is sufficient to illustrate the possibility. There are unlikely to be a huge number of inconsistent decisions, for all the reasons that I set out earlier, but I have given a possible. It is far more likely that where someone is judged unsuitable to be on a list, and that decision is upheld by the appeal authority, either it is likely to be applied across the country, or health authorities will look into the background and apply decisions in a consistent way.

Mr. Hammond: The Minister touched briefly on the question of inequality of distribution, and said he did not believe it would happen. However, I do not think that he gave any reason for that. It seemed to me that the argument that I set out was persuasive, superficially at least, and I was looking forward to hearing him demolish it, but he has not done so.

Mr. Denham: The fact that all health authorities will be clear that they are seen as having a much more front-line responsibility for the quality of services than they felt that they had in the past will mean that they are unlikely to lower their standards and say that they are willing to put up with a dodgier quality of doctor than elsewhere. That shift of outlook and responsibility is an important element of the new system, and it does provides protection against the circumstances to which the hon. Gentleman referred.

The hon. Member for the Isle of Wight (Dr. Brand) asked specifically about nurse-led practices. He probably had in mind a practice where a nurse holds the contract for a PMS practice with the local health authority but employs the general practitioners. It is the general practitioners in that practice who would be on the list that we are discussing. There is no provision in the Bill for creating a list of nurses or other health practitioners outside the four professions currently covered by the part II provisions in the 1977 Act. It is certainly the case that the doctors in a PMS practice, even if it is nurse-led, are subject to the same need to be on a list, and the same scrutiny powers as any others. I hope that the hon. Gentleman is reassured on that point.

Dr. Brand: The Minister has explained the issue clearly, but I am not reassured. Should there not be some way within the powers of the Bill to make the employer accountable in the same way as the employee? It is quite clear that the employer can affect the way that services are delivered by his or her employee, in the same way as we discussed in relation to the Care Standards Act 2000.

Mr. Denham: I will reflect on that point. I believe that the powers in the Bill are sufficient and that the nature of the PMS contract with the health authority would enable other deficiencies in the running of a practice to be addressed. I have not seen the need to specifically address a new category. One category in the Bill that we have identified is commercial corporate bodies—dental corporations—that are dealt with in a later clause. I will reflect on the points made by the hon. Member for Isle of Wight, but I am satisfied by what I have so far seen that the protections are adequate.

Mr. Hammond: If I understand the exchange that has just occurred, the Minister is saying that in cases whereby the practitioner is the principal, he must be on the health authority's list. If the nurse is an employee, she would presumably be required to be on the supplementary list.

Mr. Denham: No. All doctors have to be on a list. If they are principals, they will be on the list of principals, and if they are non-principals, assistants or locums, they will be on the relevant list. Whether they are the principal in a PMS practice or whether they are a salaried doctor or whatever their employment status within the PMS practice, they will be on the relevant PMS list. There is not a list for nurses working in primary care. We have not taken the legislation further than those groups or professions that are currently covered by part II of the Bill.

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