The
Committee consisted of the following
Members:†
Blunt,
Mr. Crispin (Reigate)
(Con) †
Burnham,
Andy (Minister of State, Department of
Health)†
Foster,
Michael Jabez (Hastings and Rye)
(Lab) †
Gidley,
Sandra (Romsey)
(LD) Godsiff,
Mr. Roger (Birmingham, Sparkbrook and Small Heath)
(Lab) †
Irranca-Davies,
Huw (Ogmore)
(Lab) MacShane,
Mr. Denis (Rotherham)
(Lab) †
Murrison,
Dr. Andrew (Westbury)
(Con) †
Newmark,
Mr. Brooks (Braintree)
(Con) †
Pelling,
Mr. Andrew (Croydon, Central)
(Con) †
Penning,
Mike (Hemel Hempstead)
(Con) †
Salter,
Martin (Reading, West)
(Lab) †
Smith,
Geraldine (Morecambe and Lunesdale)
(Lab) †
Snelgrove,
Anne (South Swindon)
(Lab) †
Strang,
Dr. Gavin (Edinburgh, East)
(Lab) †
Wareing,
Mr. Robert N. (Liverpool, West Derby)
(Lab) Webb,
Steve (Northavon) (LD) Frank
Cranmer, Committee Clerk †
attended the Committee The
following also attended, pursuant to Standing Order No.
118(2): Thornberry,
Emily (Islington, South and Finsbury)
(Lab) Eighth
Standing Committee on Delegated
LegislationTuesday 4
July
2006[Derek
Conway in the
Chair]Draft Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 20064.30
pm
The
Chairman: Before I call the Minister, it would be in order
for hon. Members to remove their jackets. This is the first time that I
have had to take mine off in a Committee, but it is supposed to be the
hottest day of the year. Bermuda shorts and flip-flops remain
banned.
The
Minister of State, Department of Health (Andy Burnham): I
beg to move, That the
Committee has considered the draft Medical Act 1983 (Amendment) and
Miscellaneous Amendments Order
2006. I am pleased to
say that I left my Bermuda shorts at
home. The order has a
long title. In essence, it is about patients and patient safety.
Patients are at the heart of our changes to the regulation of medical
practitioners and other health professionals. The order introduces
several measures that will improve the way in which the General Medical
Council protects patients. I shall go through them in
turn. The order will
simplify the registration structure and remove discrimination against
suitably qualified overseas medical graduates. It will revise the
training requirements for newly qualified medical practitioners with
provisional registration. It will clarify arrangements for the
temporary registration of visiting eminent specialists and other
overseas practitioners visiting the United Kingdom for a special
purpose—for example, embassy doctors. It will require new
registrants to demonstrate at the point of registration that their
fitness to practise is not impaired. It will take steps to ensure that
practitioners cannot derive any unintended benefits by virtue of their
name being suspended from the medical register. It will introduce
compulsory indemnity insurance cover for practising medical
practitioners. Finally, it will require newly qualified or restored
practitioners to work in an approved practice
setting. The
Government have a programme to modernise how health professions are
regulated, and the order fits within it. Like the Medical Act 1983
(Amendment) Order 2000 and the Medical Act 1983 (Amendment) Order 2002,
this order continues the process of updating the 1983 Act. In several
important respects it follows the model used for dentists, nurses,
opticians and other health professionals. Our work is making regulation
more responsive to patients’ needs and better at protecting
them. There
have been suggestions that the Government should end the present system
of professional regulation but we believe that that would be the wrong
response. Instead, we are strengthening regulation in the public
interest. It has also been suggested that issues such as consideration
of this order to amend the 1983 Act would be better held back until
after the release of the findings of the chief medical officer’s
review of medical regulation in the light of the fifth report of the
Shipman inquiry. However, the contents of the order are a fine tuning
of the regulation of doctors and the administration of the GMC and as
such are outwith the remit ofSir Liam Donaldson’s
review. The subjects covered by the order are issues that we should
want to address irrespective of the findings of that review, and they
in no way pre-empt Sir Liam’s
recommendations. Regulatory
bodies have risen to the challenge to improve regulation of our health
professionals. The GMC played a full part in bringing about the
changes. It worked hard with us to develop the further proposals in
this order—I stress that most of them began as GMC proposals. I
would like to summarise the main changes in the
order. The
first significant change is encountered in part 2. Articles 4 to 13
introduce amendments in respect of the abolition of the register of
practitioners with limited registration. They have two major purposes.
They improve the availability of suitably qualified medical
practitioners to the benefit of patients by simplifying the
registration system and by removing possible discrimination against
suitably qualified international medical graduates, wherever in the
world they have
trained. The
second major feature is a revision of the training requirements for
newly qualified medical practitioners with provisional registration who
are training in the United Kingdom. In future, the GMC will require all
such doctors to complete a programme for provisionally registered
doctors. The content of such programmes and the bodies that will be
allowed to provide them will be determined by the education committee
of the GMC, which will also appoint visitors to check on compliance
with the standards that it
sets. The
next major feature is a clarification of the provisions covering
temporary registration for visiting practitioners who qualified outside
the European mutual recognition area. Section 27 of the Medical Act is
to be replaced by new sections 27A, entitled “Temporary
registration for visiting eminent specialists”, and 27B,
entitled “Special purpose registration”. Both new
sections set out arrangements for the conditional, temporary
registration of overseas
doctors. Questions
of fitness to practise in connection with registration are covered in
part 5 of the order. Entitlement to registration under the Medical Act
will be conditional on the demonstration that an applicant’s
fitness to practise is not impaired. The registrar is given extended
powers to obtain information to confirm that an applicant’s
fitness to practise is not impaired at the point of registration. If
new information later shows that the practitioner’s fitness to
practise was so impaired at the point of registration, the registrar
may take steps to remove the practitioner’s name from the
register. In
part 6 of the order, there are new powers for the GMC,
post-registration, to apply to the relevant court to require the
production of documents or information related to fitness to practise
that have not previously been forthcoming. Part 6 also provides
clarification of the GMC’s powers to disclose fitness to
practise information when it regards it as being in the public interest
to do so.
Part 7 of the
order provides that, in certain circumstances, a person whose name is
suspended from the register can be treated as if their name were still
on it, to avoid their deriving any unintended advantage when fitness to
practise action is pending. Part 8 simplifies the arrangements for
dealing with cases of fraud or error in registration, allowing the
GMC’s registrar to deal with them and giving a right of appeal
to a registration appeals
panel. Part
9 of the order clarifies that the revalidation of a medical
practitioner’s licence to practise can take place at any time
and permits the GMC to make regulations that will require medical
practitioners to provide it with information to assist it in
determining when and how to revalidate
them. Part
10 contains a new requirement that all practitioners with a licence to
practise should be covered by an adequate and appropriate indemnity or
insurance arrangement. That has previously been good practice, but not
mandatory. It is in line with arrangements introduced, or soon to be
introduced, for other major health care
professions. Part
11 requires all those newly registered, and some of those who have been
newly restored or transferred from the limited register, to work in an
approved practice setting until their first revalidation. That will
ensure that such practitioners receive the support that they need to
enable them to practise effectively and safely.
There are also
one or two lesser provisions, including some relating to registration
fees. For instance, the renewal of registration fees will no longer
necessarily be linked to the date of a practitioner’s first
registration. Finally, there are minor, unconnected amendments to the
Opticians Act 1989, relating to the main purpose of the General Optical
Council, and to the Nursing and Midwifery Order 2001, relating to the
election
scheme. The
order contains significant reforms that will make a real difference to
patients. Organisations as varied as the General Medical Council, NHS
bodies and the British Medical Association have expressed their support
for them. I commend the order to the
Committee. 4.38
pm Dr.
Andrew Murrison (Westbury) (Con): I first declare my
interest as a medical practitioner, and therefore potentially affected
by the changes about which the Minister has spoken so well.
We are
generally content with the order as it stands, but I should like to
raise one or two points about what the Minister has said. As he said,
the order will dramatically alter the powers of the GMC; I am pleased
that he has endorsed professional self-regulation as the way forward
for ensuring that patients receive the service that they should and
that professionals are dealt with fairly. Opposition Members support
that approach, and I am pleased with the Minister’s restated
commitment to that process.
We are unhappy with, or would
like clarification on, one or two issues; I should be grateful if the
Minister expanded a little on what he has just said. One of those
points is the guarantee that those who will have their limited
registration converted into full registration would be of the
equivalent standard to those graduates who have qualified in this
country. We are rightly proud
of the standard of our medical graduates in this country, and I am sure
that we hope that those who are practising and looking after patients
here would be of an equivalent standard and level of training. No doubt
the Minister will say that that will be a matter for the employer to
determine. Indeed, that is where liability will, of course, ultimately
rest. However, the
measure will subtly change the endorsement or the certification that
the General Medical Council is giving those who are on its register,
because they will no longer be limited, but will have full
registration. It is difficult to get around the fact that employers
will be relying on that when making their assessment of the suitability
of people who have not qualified in this country to practise in their
institutions. I should be grateful if the Minister would say, first,
whether he agrees with that and, secondly, what he regards as the
mechanism by which the General Medical Council will discharge the added
responsibility that the measure will put upon
it. It
is a tall order to inspect or approve a couple of thousand or so
medical schools that exist worldwide, yet it would be extraordinary if
all of them were of the same standard as, we hope, medical schools in
this country. We must accept that graduates who are practising in this
country and who qualified overseas are not necessarily all brilliant
doctors. I wish that we could all be brilliant. But they have to come
up to a certain minimum standard. It would be interesting to know from
the Minister whether he is comfortable with the idea that those who
will have full registration under the measure will be at that minimum
standard and that there are sufficient mechanisms to ensure that
theywill
be. No doubt the
Minister will say that such people will be in approved practices during
the initial phase of their time here. That is well and good, but the
regulations and the explanatory notes do not describe how those
approved practices will work. Who will undertake the approval? To what
standard will they be measured? Will the deaneries be in charge of the
process? What will the impact be on, for example, existing trainees who
are supervised? Will there be consequentials for them, their training
and their supervision? None of that is described in any of the material
that I have in connection with the
measure. Let us
remember that the process will carry the doctor concerned right up to
his first revalidation point, which is potentially five years. That is
a long time for a doctor potentially to be practising here with full
registration of the General Medical Council, and all that it means, if
the doctor is perhaps not practising in a way that accords with the
minimum standard that we hope is applicable to people managing patients
in the United
Kingdom. I wish to
make a small point about the notion of equity. We would all sign up to
it and I am very pleased if the measure erases some of the unfairness
that exists in the employment of doctors who have not trained in this
country, but who wish to train here. I observe, in passing, however,
that in the past few days there has been a change in the immigration
status of doctors who have traditionally served the national health
service very well. In a fairly summary and abrupt fashion, the
Government announced that those doctors occupying training posts in
this country who, not
having won a six-month post, came here with the expectation of a series
will find that that is no longer an option that is open to them. I am
sure that the British Association of Physicians of Indian Origin and
others have been lobbying the Minister on the unfairness that that has
created. There is something of an irony in that the measure apparently
increases fairness in the employment of doctors in the UK, yet the
Government have decided to exclude that traditional group of doctors
who have served people in this country so well for many years,
particularly those from the Indian sub-continent. It is rather
difficult to square the two. We accept
that a large part of the measure has to do with improving fairness.
Notwithstanding the events of the past few days, I understand the
Minister’s concerns about improving transparency and fairness in
the employment of doctors, whether they are trained in the UK, the
European economic area or outside Europe. That is good, but I hope that
the Minister will assure himself, the Committee and the House that the
standard of medical graduate whom he will assist into the UK will
approximate to the standard of those who are trained in this country. I
have no particular reason to doubt that that happens, but, in support
of that case, it would be interesting to know whether the Minister has
asked the General Medical Council for a breakdown of cases referred to
it for investigation, a breakdown of doctors disciplined under its
mechanisms and information on whether there is any correlation between
doctors who were trained in the UK, in the EEA or outside the EEA. Such
an examination would be extremely germane in considering the measure in
relation to patient safety and welfare and could, I suspect, be done
relatively easily. It would be interesting to know whether such
information had any bearing on the drawing up of the measure.
That issue is linked to
concerns that have been expressed by the Royal College of General
Practitioners relating to the ability of the GMC adequately to assess
the quality of the training provided in other countries. We know that
that area is difficult; the General Dental Council recently struggled
with it in relation to the inspection of professions that are
complementary to dentistry in the European accession states. It is an
extremely difficult, problematic and expensive area.
The Government say that
employers will be responsible for all of that, but, for reasons that I
have outlined, that seems to be a tall order for potentially small
employers in the UK who will rely heavily on the status of full
registration with the GMC in making an assumption about the
acceptability of a graduate. I suggest that the shift from limited to
full registration gives rather a greater accolade to such doctors and
perhaps suggests to employers, many of whom are small employers, and
many of whom do not have the facilities to check on the background of a
particular practitioner, that that person is appropriate. Indeed, that
is the whole purpose of the
GMC.
It is all very well determining
whether qualifications are appropriate, but it is equally important to
know that a particular practitioner has been practising recently. In
the past few years, it has become increasingly difficult for UK
graduates simply to take
time out and then go straight back into medical practice. We all have to
keep up to date, even if we are doing other things, as well as
medicine. If one has any thoughts of practising medicine again in the
future, or going back to it in some way, one must keep up to date.
Although it might have been acceptable in the past, one can no longer
simply go back into medicine after a period of several years and expect
that to be acceptable. It is important for the GMC to assess doctors
not as they were five or 10 years ago when they qualified, but how they
are right now, how contemporary their knowledge and experience is and
how it relates to the UK. I am afraid, going through all this, that I
do not get the feeling that there is a mechanism for making that
assessment. I hope that the Minister will be able to assure me that I
am in error and that there is, at least in the guidance that will flow
from this, an acknowledgement of the importance of establishing whether
a practitioner’s knowledge and experience is contemporaneous
rather than
historic. Article 69
deals with the extremely interesting area of mandatory professional
indemnity and insurance and it is important to understand the
difference between the two. If I may be slightly critical of the
Minister, he rather glibly passed over that difference in his
remarks. Insurance is
precisely what it says and what we all understand it to mean. It means
that if there is a problem someone will underwrite it and the company
or organisation that is offering the product will provide insurance for
acts of omission or commission. Interestingly, the Medical Defence
Union, for example—I used to be a member—shifted in 2002
from the mandatory professional indemnity model to an insurance-based
product. The significance of that is that professional discretionary
indemnity means that the offer of a particular service is at the
discretion of the organisation. In other words, prior to 2002 it would
have been possible for the MDU to accept that one of its members was in
need of assistance but to decline to provide it for whatever reason.
Clearly, that can result in a problem. Not only does it open the
practitioner to the liability; it means that the patient does not get
any redress. With insurance that is not the case because there is a
legal obligation on the organisation providing the cover to cough up
with the readies, to put it bluntly, if something goes wrong. Other
defence unions in the UK offer the discretionary
product—discretionary professional indemnity—which is not
regulated by the Financial Services Authority, unlike the
insurance-based product that the MDU now offers.
It is not for me to defend one
or the other, and no doubt they both have benefits and disbenefits, but
it is interesting to note that this measure will make it compulsory to
have either insurance or discretionary indemnity. That stands in sharp
contrast with most other European countries, Australia and most
American states. Although I welcome article 69, perhaps we might
beneficially come down on one side or the other and make it mandatory
to have either professional indemnity or an insurance-based product
that is regulated by the FSA. The Minister or his officials have
probably considered that and I have no doubt that the Minister has been
lobbied not just by the MDU but by other providers in the field and
that a decision has been made to opt for the either/or model that he
described. It would be useful for the Committee
to know why he has opted for that rather than the insurance-based
product, which would mirror the product in other
countries. The other
issue is run-off indemnity, which is the indemnity that can be bought
for cover after retirement. It seems to me that that should be covered
in the article because it is always possible for a practitioner to be
sued after he or she has retired. It is surely prudent to ensure that
if cover is made compulsory that compulsion should cover the period
when a practitioner is at risk after retirement from the job that
required the cover in the first place. I see no mention of that here
and it would be interesting to know
why. Those employed as
national health service doctors have discretionary indemnity, and
historically that has meant that all practitioners are covered by the
national health service. Presumably, that is because it is a very big
employer and, ultimately, the Government can underwrite the acts of
doctors working for it reasonably easily. However, it would be useful
if the Minister confirmed that it would be highly unusual for the NHS
to decline its liabilities and hang a doctor—or any other health
care professional, for that matter—out to dry, even though it
can do so in theory, as the indemnity that it offers is discretionary,
not
mandatory. Finally,
parts 5 and 6 introduce fitness-to-practise procedures in connection
with new registrations; the Minister mentioned that. The provisions
introduce a declaration to be made at the time of registration, which
covers things such as conduct, character and probity. It would be
useful to know what the Minister understands by that, and what sort of
standards he is looking for. The declaration would have to be made, and
those who wanted to be registered would have to make a judgment about
whether there was anything relating to their character, past conduct or
probity that they ought to bring to the attention of the registering
body. I wonder how that might equate to the situation for other trades
and professions—particularly, dare I say it, our own, in the
current
climate. 4.56
pm Sandra
Gidley (Romsey) (LD): This is a welcome piece of
legislation. As the Minister suggested, much of its work is tidying up
consultations that took place post-Shipman. There has been so much
consultation that there is very little contentious about the order. As
is usual in such situations, we are faced with a framework, and the
devil is probably in the detail, which we cannot have before us today;
however, the hon. Member for Westbury (Dr. Murrison) highlighted some
of the areas of
concern. An issue on
which there has been a bit of a spat—that always makes preparing
for one of these things a bit more interesting—is article 69, as
has been mentioned. I have received briefings from the Medical Defence
Union and the Medical Protection Society, both of which assist members
with legal problems arising from professional practice. It has already
been pointed out that that assistance takes difference forms. Article
69 inserts a section in the Medical Act 1983 that enables the General
Medical Council to make regulations about what is an
“adequate and appropriate
indemnity arrangement”.
The principle is supported by
both organisations, but there appears to be a difference in approach to
the details. Again, the order deals only with the broad
principles. The
MDU is concerned that the order will allow doctors to obtain
discretionary indemnity. It states that doctors thus covered do not
have the right to receive assistance, only the right to request
assistance. A decision on whether to assist can be made only at the
time the doctor presents the indemnifier with the facts of the case for
which he or she is seeking help. The “what if?” is: what
happens if the discretionary organisation refuses to help? The MDU
claims that the doctor could face financial ruin, and that the patient
could go uncompensated. We might have our views about someone who has
done something not terribly wise or clever, or even something downright
dangerous; that might be a concern. Certainly, we would all be
concerned for the patient.
The MPS takes a different view;
I suspect that it is among those who offer such schemes. It says that,
provided that the doctor was in benefit with the MPS at the time of an
adverse incident, he or she is able to ask for assistance, even if
retired or no longer a member of the MPS. That would appear to address
half the question asked by the hon. Member for Westbury about what
happens when doctors retire, because often a case is brought some time
later. It also says—the wording in the briefing is
interesting—that it
has “never
exercised its discretion to withhold or withdraw indemnity, from a
member facing allegations of clinical negligence, when he or she had
provided bona fide medical treatment and paid the appropriate
subscription at the relevant
time.” It also
states: “no patient
entitled to compensation has ever been left uncompensated as a result
of MPS exercising
discretion.” I
thought that those were interesting choices of words because a judgment
appears to have been made about bona fide medical treatment, which
would suggest a slightly grey area. In addition, the MPS goes on to
talk about patients who are entitled to compensation, and I am not
quite sure where it is coming from.
I do not feel that with the
limited amount of information I have received I am in a position to
judge which approach is wrong and which is right. I hope that the
Minister will assure us that when the rules are drafted the matter is
looked into closely to ensure that there will not be any cases where
either doctors are not covered or, more importantly, where patients are
not covered. The bottom line is that we would not want the patient to
lose out. I shall make
a few other brief points. The abolition of limited registration appears
to have received fairly broad support. The issues around the transfer
have already been raised, so I shall not repeat them.
There appears to be some
contention about the mutual recognition arrangements for European
graduates set out in European law, which do not include English
language proficiency tests. Article 35 of the order deals with this
matter, but I seek clarification because proposed new section 21B(1)(d)
of the Act states that where a person satisfies the
Registrar, “unless he is
an exempt person, that he has the necessary knowledge of
English” he can be
registered.
Could the Minister clarify that the phrase
“exempt person” does not mean blanket coverage in respect
of a doctor from the European Union?
There are issues around the use
of language. A person’s language has to be very good in some
areas to interpret some of the finer points of the doctor-patient
relationship. The applicant’s language might be good enough to
order a meal and to order some tests, but there is an increasing
emphasis on interaction between doctor and patient, and that requires a
sophisticated degree of language. There should be no exemptions to the
language clause, in the interests of the
patient. I shall echo
a point made by the hon. Member for Westbury, although this is a
slightly different one. Some of the royal colleges have raised concerns
that the training for doctors, particularly in some of the accession
countries, is different. They were careful not to say whether it was
better or worse; they used the word “different”. The
implication was that the training might not be the same as we have.
There appears to be a wider patient issue, because we must ensure that
patients receive consistency of treatment and service.
Finally, I want to cover part
5, which deals with the provision of information in respect of fitness
to practice matters, where, again, there is little detail. I was
interested in the final point raised by the hon. Member for Westbury. I
am not clear what is specifically important in deciding whether a
doctor is a fit person to practise medicine. I know that coming down
the tracks is a similar section 60 order for pharmacy, which is why
this has exercised my thoughts. Some have put it to me that there might
be a pattern of, if not minor crime, then minor transgressions. A
person might have committed consistent traffic transgressions or have
been convicted of theft in their younger days, but be a reformed
character now. How much of that will be required to be disclosed? Will
professions be put in a position where there can be no reformed
characters? A lot of
people probably do things that they regret in their younger days but
there is an increasing trend towards mature students turning to
medicine and other medical professions, and they should not be hampered
by mistakes from the past. Again, however, that must be very much
balanced against the patient’s interests. If the Minister can
clarify the thinking behind the provisions and the extent to which
information will be required and published, that would be very
useful. I have a very
minor point about part 6. New section 35A of the Act states that there
will be 14 days for the provision of information if there is a
fitness-to-practice issue. Why was 14 days decided on? It seems quite a
short period, given that people go on holiday for longer. The provision
seems a little onerous and a little
inflexible.
5.7
pm
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