House of Commons portcullis
House of Commons
Session 2005 - 06
Publications on the internet
Standing Committee Debates

Draft Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006

The Committee consisted of the following Members:

Chairman: Derek Conway
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 Legislation

Tuesday 4 July 2006

[Derek Conway in the Chair]

Draft Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006

4.30 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.
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.
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
Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2006
Prepared 5 July 2006