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“Will the Government legislate to allow direct payments to extend across health and social care, so that patients with long-term conditions can control the management of their care?”
The then Secretary of State replied:
“The hon. Gentleman...mentioned the extension of direct payments, not only to social care but to health. That sounds like the revival of the patient’s passport.”—[ Official Report, 30 January 2006; Vol. 442, c. 26-29.]
In the White Paper, the Government said:
“It has been suggested that we should extend the principle of individual budgets and direct payments to the NHS. We do not propose to do so, since we believe this would compromise the founding principle of the NHS that care should be free at the point of need.”
I did not agree with them then and I do not agree with them now. Interestingly, Lord Darzi said in his interim report:
“we need to learn how to support and allow eligible service users increasingly to design their own tailored care and support packages. This could include personal budgets that include NHS resources.”
The Government have done a complete U-turn. Will they say today that they will incorporate in the Bill the necessary provisions to allow individual budgets and direct payments to extend across health and social care, in the way that Lord Darzi has made clear he now supports?
Finally, on the pharmacy contract, there is a proposal to transfer the global sum into the hands of primary care trusts. Will the Secretary of State—or the Minister of State, when he replies to the debate—acknowledge that thus far there has been a pitiful take-up of most of the advance services that would have delivered precisely what the Prime Minister, when
he became Prime Minister, said that he wanted— pharmacies that offer more screening, more lifestyle support and more opportunities for people to access sources of advice and information about their health?
That is not happening under the current pharmacy contract. It needs to be transferred from the Government to the primary care trusts, and the Government should make sure that there are sufficient incentives for the pharmacy contract to do what was intended, as distinct from pharmacies getting a global sum as a consequence of the manipulation of category M list prices.
This is a portmanteau Bill. The Secretary of State has arrived with his bag full of lots of tricks, most of which have been in gestation in the Department since long before he arrived there. None the less, some of them will be useful. Many of them will require scrutiny during the passage of the Bill, but none of them, as put forward by the Government, constitute the long-term sustainable vision of how health and social care can be regulated in a way that will deliver the improvements in standards that we all so long for.
5.40 pm
Mr. Kevin Barron (Rother Valley) (Lab): I declare an interest. In 1999 I was appointed, along with two other Members of the House, to the doctors’ regulatory body, the General Medical Council, and in 2003 I was reappointed to the new council by the National Health Service Appointments Commission, and I still sit on that body.
I am pleased that the Bill is before the House and that we are considering the introduction of a care quality commission, which will have tough powers to deal with the safety and quality of care. We have just heard the hon. Member for South Cambridgeshire (Mr. Lansley) speaking from the Opposition Front Bench about how important performance management is in the national health service. I agree with him about that. It is difficult to grasp who is responsible for what. Over time, a regulator that deals with the quality of care could answer many questions about the differences in treatment that patients—our constituents—sometimes experience between one establishment and another.
Also, bringing together the regulation of health, adult social care and mental health care should ensure a more consistent approach to regulation. The regulation of social care will represent a large part of the work of the new regulatory body. Hopefully, it will implement our manifesto commitment to strengthen clinical governance and the regulation of health care professionals.
During the last general election when I was a candidate and not a Member of the House, I spent an evening in Tameside talking to a group of people who were relatives of the victims of Dr. Harold Shipman. After talking to them for two or three hours, the need for a change in regulation was all too apparent. Because of the dreadful consequences that their families had faced, those people knew more about regulation than many health professionals or Members of the House. Health and social care professionals should be more accountable to the public as well. I hope that that is implicit in the aims of the Bill.
The merger of relatively new regulatory bodies will have to be handled carefully. There is always a danger of losing effectiveness when change takes place, as people are left wondering whether their position will
exist in a few months. The Select Committee on Health, on which I sit, has often found that change tends to take people’s mind off what they should be doing. Care must be taken that that does not happen when the merger proposals in the Bill are implemented.
Having been on the General Medical Council for many years, I have more than an outside interest in these matters. I am interested in the doctors’ approach to the Bill. The British Medical Association is moving a little closer to where it should be as the representative of the vast majority of doctors. The tone of its press releases a few months ago, one of which was headed “Doctors’ leader warns of ‘assault’ on the medical profession”, has changed. I am pleased that it has, because I do not think that there is an assault on the professionals at all. I frequently meet doctors up and down the land who do not feel that what is happening is an assault on the profession.
Dr. Stoate: I am sure that some members of the medical profession would, rightly or wrongly, feel threatened by a change in the burden of proof from the criminal to the civil standard. We need a supportive culture that emphasises the education and retraining of doctors who have difficulties and encourages doctors to speak out about problems that they see for themselves and others. If we are to produce that supportive culture, which in the end would lead to better patient care, we have to make sure that doctors do not feel threatened.
Mr. Barron: I agree entirely; my hon. Friend is a practising doctor and knows such things better than I. However, what I mentioned has been the case for all the years that I have been on the General Medical Council—and probably since the council was first brought into being. Sadly, that does not mean that it is the actual practice on many occasions. That is why some of the detail in the Bill is important.
Let me cite two things that the BMA said in its brief for this debate:
“The BMA also has concerns about the removal of the adjudication function from the General Medical Council...and therefore the creation of a separate body, the Office of the Health Professions Adjudicator. We are also very worried about the role of the proposed ‘responsible officers’ because we see them as having a conflict of interest between their various roles.”
“The BMA strongly opposes Clause 104 which imposes a requirement for all the health professional regulatory bodies and the new Office of the Health Professions Adjudicator to use the civil standard of proof (the balance of probabilities)”—
that has just been alluded to—
“in fitness to practise cases. The General Medical Council currently uses the criminal standard (beyond reasonable doubt). It would be an injustice to remove a doctor’s livelihood based on a lower standard of proof than is used currently.”
I can only say that I think that the BMA is wrong. Having discussed the issue with numerous doctors, I also think that many doctors think so too. However, one thing in the brief that I agree with—I want to put it on the record as well, and I hope that the whole House agrees with it—comes on page 1:
“The vast majority of doctors perform well and safely, and acknowledge that it is imperative that patients are protected from the small number of cases of unsafe doctors. The BMA therefore fully supports measures that promote excellence in medical
practice and that help to reduce instances of poor standards, negligence or criminality among doctors.”
I agree wholeheartedly with the first part of that: the vast majority of doctors do look after us as we would expect, and we should have confidence in them.
Peter Bottomley: May I use this question to prompt the Minister later, although that may require a bit of work? Does the right hon. Member for Rother Valley (Mr. Barron), the Chairman of the Health Committee, agree that the civil standard in professional cases rises up towards the criminal level? There are not two totally separate standards. We could get advice on this, but I do not think that the BMA need be too worried if the current acceptance of what the judge has laid down for civil standards does indeed rise if a doctor’s ability to go on practising is at stake.
Mr. Barron: That is absolutely true. I have the evidence that the General Medical Council received on that matter. There were two clear cases in which the civil standard was increased on that basis. In one, the allegations were made under the civil process, but they were serious allegations that needed serious action. I shall allude to that issue further in a few minutes.
What is taking place is not new in respect of quitea lot of the regulation of doctors, of which I have experience. In 2006, the GMC published a package of proposals designed to deliver a modern framework of independent and accountable medical regulation,and the Government’s White Paper, “Trust, Assurance, Safety: The Regulation of Health Professions in the 21st Century”, reflected a lot of the GMC’s own paper. The GMC is confident that its current arrangements for adjudication lead to consistent and high-quality decisions. The hon. Member for South Cambridgeshire referred to separate adjudication and said that the BMA might have concerns in that regard. As things stand, the GMC would not disagree with that. It has changed its adjudication panels massively since I first became a member in 1999. I was involved in the changes in governance between 1999 and 2003 that made adjudication as independent from the statutory body as it could be.
The BMA’s parliamentary briefing says on page 3:
“The BMA does not believe the case has been made for establishing a separate body and does not accept that the medical profession should lose the authority to regulate itself.”
It is fundamentally wrong for the BMA to use words like that. In my experience of the GMC, it has not been a case of doctors protecting doctors—far from it. In the years prior to 2003 when I sat on fitness to practise panels, there was never a case of lay members versus doctors in terms of wanting to come to a decision on a doctor. Such words do not do the profession any good. Sadly, some people still think, wrongly, that it is about doctors protecting doctors—no wonder, when one sees such words in briefings given to Members of this House for the purposes of a debate.
The GMC has accepted the Government’s decision to establish an independent adjudication body and will use its expertise to help to ensure the smooth transition from where we are now. When we changed the GMC’s governance in 2003, the one thing that we could not do was to appeal against any decisions by the adjudication panels, because we had made them independent. I remember going to meetings of the adjudication panels
as a lay member, trying to talk the case through with them, and then saying, in a nice way, “We think you got that decision wrong.” At least the GMC will now be able to appeal against decisions of the adjudication panels. The GMC is pleased that the Government have accepted its view that it should have the right of appeal, have made it clear that the GMC remains the owner of professional standards, and are protecting in legislation the relationship between the new body and the GMC in the application of the principles of good medical practice. Good medical practice is what the GMC judges all its doctors against, and the fact that it remains in statute is a very good thing.
The GMC believes that patients’ best interests are best served by independent and accountable regulation. The GMC must be independent of Government as the dominant provider of health care in the UK, independent of domination by any single group, and publicly accountable to Parliament. In response to the hon. Member for South Cambridgeshire, who said that a draft section 60 order is likely to be published at some stage, it was published today, and it looks into some of the areas that he mentioned. The GMC’s current model of governance is that there should be parity between medical and lay members without an in-built majority on the council for either. We should aim for an equal proportion of medical and lay council members—a 50:50 split—on the new council that will emerge from the section 60 order.
I remember when we moved from a GMC of 124 members, which was by and large dysfunctional—it was a bit like being in Parliament except that Division bells did not ring so we never took a decision on anything; at least that happens here, as dysfunctional a body as we may or may not be—to a membership of 35. A 50:50 split is right and proper. We will see how that will work in the next few days in the details of the section 60 order. The GMC should also have a balanced composition that reflects those who receive and provide health care across the UK—patients and the public, doctors, the NHS and other health care providers, medical schools and medical royal colleges. That is crucial. If it cannot be done numerically, it can be done by ensuring that people on the council have the breadth of experience to play a useful role.
The civil standard of proof will apply in any case without the Bill. The GMC decided that quite a long time ago, upsetting the profession well before Ministers did so by publishing the Bill. That mode of travel was suggested by Dame Janet Smith, and it will apply whether we change regulation procedures or not. I will loan my hon. Friend the Member for Dartford (Dr. Stoate) my legal opinion on that and he can read it for himself. The GMC’s president, Sir Graeme Catto, is on record as saying that he does not believe that the change will result in more doctors being erased from the register, but it should make it easier to impose appropriate restrictions on a doctor’s practice where that is necessary to protect patients. Removing a doctor from the register is a very serious matter, and where the consequences are loss of livelihood, the rigour of the criminal standard of proof, or a standard close to it, is clearly appropriate. On the other hand, the consequences of sanctions other than erasure may be
less profound, and that could be taken into account in the evidence required to reach a finding on the civil standard of proof. That approach is wholly consistent with protecting patients and the public interest, and with being fair to doctors.
The GMC’s legal advice makes it clear that the civil standard of proof is not a rigid criterion by which facts are to be judged, but is to be tailored to the facts of any given case. It is often said that the more serious the facts alleged, the more cogent and compelling will be the evidence required. The application of the civil standard of proof more accurately reflects the true function of the GMC fitness to practise panel. Having had years of sitting on those panels, I completely agree. We would never go for the more serious actions against a doctor without good cause or consider one standard and one only. The panel is not a criminal court and it does not apply the criminal law. In particular, it is questionable whether it is appropriate to retain the criminal standard of proof in a protective rather than criminal jurisdiction, especially when the concerns relate to a doctor’s health or performance. That is crucial. The process is there to help the doctor, but often it is too far down the line.
Sandra Gidley (Romsey) (LD): Does the right hon. Gentleman agree that the recent section 60 order provides a lot more flexibility to look at cases where a doctor may have had an ill-health problem, and that whereas previously the only option in such cases had been to strike them off, a more sympathetic approach can now be taken?
Mr. Barron: It has always been the case that the GMC has tried to consider health and performance issues differently, but they may become relevant when the case is presented. When adjudication goes to the new body, recognising issues to do with doctors’ health and performance will be as important as the question of what might have happened, although I accept that that depends on the seriousness of the incident.
The great majority of professional tribunals in various walks of life apply the civil standard of proof; and it is already used by the majority of other health care regulators. During recent consultation—I say this to my hon. Friend the Member for Dartford—several other regulators that apply it confirmed that it did not present them with any undue difficulty. In those circumstances, there should no grounds for the fear put about by representative bodies. The Court of Appeal recently explained that the use of the criminal standard of proof in areas other than the criminal law is very much the exception. The GMC is committed to ensuring that procedures are fair, objective, transparent and free from unfair discrimination, and that they command the confidence and support of all those who receive and provide health care throughout the UK. I believe that the application of the civil standard of proof is consistent with the protection of patients and the public interest, and it is fair to doctors at the same time. I am pleased that such a process will take place.
I would like to move on to the issue of responsible officers, which was mentioned by the BMA and in the speech of the hon. Member for South Cambridgeshire. There is a need for greater coherence and co-ordination across all levels of medical regulation, particularly
locally. Heath care providers have a clear responsibility for effective clinical governance arrangements that ensure that the fitness for purpose of those whom they employ, or contract to provide services, is good. They also must be effective channels of communication between national and local systems, which includes ensuring clarity with regard to matters that need to be addressed locally, and those that should be dealt with by the national regulator.
While with the GMC, I sat a lot on the interim orders committee before 2003. It would consider a lot of cases without taking final decisions on them. There were cases—not very often—that quite clearly should have been dealt with at a local level; doctors did not need that stress in their lives, or the threat of having to go in front of their regulatory body. Quite often, an exchange of letters was enough to deal with such cases. That raises the question why such cases progressed to the regulatory body in London when most people thought that they could have been handled at a local level.
The establishment of responsible officers means that for the first time there will be a nominated individual at a local level with a statutory responsibility for fitness to practise matters. Based on my experience, that is a good thing not just for the profession, but for our constituents and for patients. It will build up a confidence that is sadly sometimes not there. The role of responsible officers includes monitoring the conduct and performance of doctors, ensuring that appropriate action is taken in response to concerns about conduct and performance and evaluating the fitness to practise of medical practitioners. That role is clearly, therefore, linked to revalidation.
Revalidation was promoted by the GMC for many years, sometimes with the support of the profession, sometimes not so much. We need to ensure that doctors working in our health care system are up to date. To be on the register, all they need to do is go through medical school, get on the register, get their number, go into work, and—provided that they do nothing wrong for the next 30 years—they can retire on an NHS pension. Even if they are independent contractors, like my hon. Friend the Member for Dartford, they can retire on an NHS pension, provided that they do nothing wrong. There is no measure to ensure that doctors keep up to speed with new medical practice or to ensure that they are using better services for patients to give them better quality of care than they would have received in years gone by. Having an in situ responsible officer overseeing revalidation, which will come in separately to the Bill or regulations—
Dr. Stoate: For the record, we have had reappraisal in general practice for some time and hospital doctors certainly undergo extensive revalidation in order to meet clinical governance regulations. I would not want the House to think that there is no onus on doctors to remain up to date.
Mr. Barron: That is true, but it depends on who is doing the appraisal. I am not sure whether it would be right for someone who works alongside a person to do their appraisal.
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