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“to ensure that, where necessary, a Secretary of State can ask the council to prioritise certain areas of its work load over others: for example, in cases in which there is particular public concern”. ——[ Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 421.]
That is as clear an admission of the political meddling that the Bill enables as one is likely to get.
I am glad that the Government have conceded that point. I would be grateful if the Minister outlined why and how his views have changed since the Committee stage and why it was not possible to concede the points at that time. Exactly the same points were made to
advance that argument in this House as were made in the other place, as the Minister mentioned.
Amendments Nos. 33, 34, 55, 57, 58 and 59 were tabled in response to the Lords Delegated Powers and Regulatory Reform Committee and to Conservative amendments tabled by my noble Friend Earl Howe. The DPRRC recommended that regulations conferring responsibilities on responsible officers under new section 45B of the Medical Act 1983, as inserted by clauses 114 and 115, should be subject to the affirmative resolution procedure on their first exercise by each of the appropriate authorities. I note that the DPRRC made three specific recommendations and that the Minister accepted them all.
The Minister will be aware that we called for regulations under clause 114 to be subject to the affirmative resolution, along with all the other regulations in the Bill. The House will recall that a quarter of the clauses in the Bill are dependent on regulation—a high proportion. In addition, there are a number of Henry VIII clauses that enable the amendment of primary legislation by secondary legislation, although the majority are already covered by the affirmative resolution. I am glad that the significant new step in regulatory policy—the creation of responsible officers—will have proper parliamentary scrutiny at its outset, at the very least.
In Committee, we tried to pin down some of the policy on responsible officers. The discussion was framed by the concerns expressed by Lady Justice Smith during her oral evidence. She told us:
“I really find it difficult to know how responsible officers are going to work and what role they will play in revalidation. I do not get that from this Bill.”
“I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers”. ——[ Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42-43, Q83.]
One suggestion is that PCT medical directors will be the responsible officers. Indeed, the Minister told the Committee that while the Government
“do not seek to be prescriptive, we think that a medical director would be perfectly appropriately for this role”
“it would not require a full-time post.” ——[ Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 431-33.]
PCT medical directors are already busy and have many priorities. In her oral evidence, Lady Justice Smith noted that, saying:
“I am really unhappy about that for several reasons...I do not like the idea of a medical director, who already has a lot of jobs, having to take on responsibility for revalidation as well as all his other jobs. I think that that is too much.”
Part of her desire to have the responsible officer as a separate role arises from her concern that
“the revalidation process should be clear and understood, that it should be summative and a proper test, and that it should not just involve shuffling pieces of paper around and rubber-stamping them”.
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The Medical Protection Society has also made that point. To show how the responsible officer’s position could cause serious conflicts of interest, I hope that it will help the House if I cite a short example. Let us say that a local doctor prescribes an essential cancer drug
for a patient and that that puts strain on the PCT’s budget. Suddenly, the doctor finds himself at the wrong end of inquiry by the local GMC affiliate medical director. How does the GP know that the inquiry is genuine and not contrived? How does the medical director, the GMC affiliate, know that he is not being influenced in his regulatory decisions by pressure from his PCT chief executive?
Lady Justice Smith noted the reverse possibility. She said:
“There is a real tension between, on the one hand, an employer’s desire to keep all of his employees in post, revalidated and fully qualified, and, on the other hand, the possible need to refuse to revalidate somebody, in which case their services might be lost entirely, diminished or put on hold, from which problems might arise. I am unhappy about that. I cannot tell how it will work, but it looks to me that it might be like that.” ——[ Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 43, Q83.]
Dr. Hamish Meldrum of the British Medical Association said:
“It comes back to the whole business of having confidence. We are aware of people—medical directors in trusts, or otherwise—whose loyalties have been primarily to their trust. We are not saying that their loyalties should be to the profession, but they should be to the wider benefits of health care. It is about achieving that balance by a degree of separation of function and a degree of separation of loyalties from the employer, and having an effective and practical operation. That is quite difficult: I accept that.”—[ Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 67, Q148.]
The PCT medical directors are themselves the employees of PCTs, so their impartiality in the regulatory management of local doctors cannot be guaranteed. Responsible officers should be completely independent of the local PCT as in that way they are more likely to command the trust of local doctors and hence ultimately make the scheme more successful. As yet we have no confirmation that PCTs will not be encouraged or coerced, either by policy or by funding issues, to merge the two roles.
Responsible officers provide an opportunity for a dedicated individual to pick up the early warning signs in, for example, prescribing practice. That allows an opportunity to improve performance. In an open system of benchmarking, that could be an effective asset to the local and national health economy, and to the professionalism and morale of local doctors.
Given the contention surrounding the policy, I am glad to see this Government concession to pressure from the DPRRC and to points made by the Conservatives and Liberal Democrats, both in this House and the other place. I trust that the affirmative resolution procedure will provide an opportunity for proper parliamentary scrutiny of the proposals. I hope that the Government will listen to the hopes of the profession in order to make the policy work best, for patient protection and better patient care.
I turn now to Lords amendment No. 35. It would require the appropriate Minister, when making regulations on the sharing of information about health care workers among specified bodies, to
“have regard to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made.”
Liberal Democrat members of the Committee spoke about this matter, as did my noble Friend Earl Howe in Grand Committee. In Committee, the Minister said
that the protections needed in respect of sharing unsubstantiated allegations would be made
“plain in the secondary legislation.”——[ Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 438.]
What has changed the Minister’s mind to bring us to where we are today? Can the Minister confirm whether there will be official processes—perhaps a formal alert system—to avoid tittle-tattle and unfair stigmatisation?
Mr. Walker: Perhaps my hon. Friend can help me. An allegation is an allegation. What in the Bill will protect members of the clinical professions from having allegations made against them? Surely the person making the allegation must be made aware that if the allegation is malicious, they will face legal action.
Mr. O'Brien: I am most grateful to my hon. Friend, who makes a powerful point. We in this House must be supremely conscious to ensure that justice can be done, and can be seen to be done. We are talking about a quasi-judicial area, and it is of course important not to discourage whistleblowing, which is one of the best sources of information. The Minister of State, Department of Health, the hon. Member for Exeter (Mr. Bradshaw), and I have been asked the question: what does one do to guard against those who might be minded to make a malicious allegation? There are people who might be keen to do so, because of career jealousy or personal angst. What would be the threat against those who knew that they had done something wrong? The answer is not in the Bill. The Bill rightly ensures that information can be provided, and it could be malicious or non-malicious. If it is non-malicious, that is fine, and the allegation will be examined.
Of course, as with laying information before the police, there is information that it is important to provide. If it is of the most catastrophic kind, we need to know it as soon as possible, so that the police or, in this case, the professions, can investigate. My hon. Friend’s point is about the middle ground—an issue that is not specified in the Bill. That could be improved.
Mr. O'Brien: Perhaps I could just finish the point. There ought perhaps to be a safeguard. Somebody who makes a complaint needs to know that they can opt for an alert system. They can put the matter to an official body, which can then be on watch, or on alert, without launching a formal investigation. By that means, responsibility is offloaded from the individual. If the complaint is non-malicious, that is likely to give the person confidence that they have at least done the right thing. They will know that the official bodies are in possession of information that gives them the chance to be on watch, or to put in place an appropriate alert system. That happens in other areas, and quite properly so.
The problem is that at the moment we do not have that necessary halfway house, which would at least in part provide the safeguard that my hon. Friend seeks in order to deter malicious tittle-tattle and worse. That is not in the Bill, but now that we have had this exchange, I hope that the matter will at the very least be picked up in the training and guidelines for all those involved officially in encouraging whistleblowing more widely, through marketing. We see advertisements encouraging whistleblowing in various parts of our community from time to time, so that we can get genuine information
and so forth. That information will then be given, and the subject of the complaint can be officially put on watch; that way, allegations are not simply a way of passing on tittle-tattle. I hope that that addresses my hon. Friend’s valid and important point to some degree, and I am deeply grateful to him for raising it.
When the Minister addresses the points raised in discussion on this group of amendments, it would be helpful if he amplified his views on whether there will be official processes—perhaps a formal alert system of the kind that I described—to avoid tittle-tattle and unfair stigmatisation. That would give whistleblowers clarity and peace of mind about the fact that their concerns are being dealt with professionally. It would also give professionals the confidence that they need in the system, and I hope that the Minister listened carefully to our exchange.
Amendment No. 52 is coupled with amendment No. 56. They would ensure that the rules concerning the running of a pilot scheme for legally qualified chairs of panels were subject to the affirmative procedure. As I am sure the Minister remembers well, we have already had extensive debate about legally qualified chairs. The amendments were tabled in response to points made by my noble Friend Earl Howe in Grand Committee, and by others, about the fairness of the scheme. The Government amendments on legally qualified chairs that were brought forward on Report in the Commons did not go as far as they might have done, but they were an important concession by the Government, and they recognised the strength of the arguments—not least our own—on legally qualified chairs.
The provision of legally qualified chairs arises from recommendation 79 of the Shipman inquiry’s fifth report, by Lady Justice Smith, then Dame Janet Smith. She reinforced her position during an oral evidence session in the Public Bill Committee, on 8 January, at column 37 of Hansard. Her grounds relate to effective chairmanship, the speed of proceedings, a higher standard of reasoned decision, and an ability to deal with the complexities of the civil standard of proof. It will be remembered that the Bill uses the civil, as opposed to the criminal, standard of proof for the processes in question. I am glad that both Houses will have the opportunity to scrutinise the final proposals when they come before us; that will be absolutely vital.
Amendment No. 62 prevents schedule 8 from coming into force on the day the Act is passed. Will the Minister clarify why he has had to take that step? I am grateful that the Government have conceded that the commission should be able to conduct special reviews from the outset. The Government spokesman in another place noted:
“The commission will decide for itself what reviews are necessary from the outset, taking account of the resources available to it and the need to fulfil all its statutory functions.”—[ Official Report, House of Lords, 12 May 2008; Vol. 701, GC253.]
Both the Commission for Social Care Inspection and the Healthcare Commission have produced valuable special reports that are able to assess the national picture of a specific issue. There was some concern about the Government’s desire to delay granting that power to the regulators—not least that the delay would have conveniently tied the hands of the regulator until after the next general election. The Minister opposed the move in Committee and we pushed it to a Division. Why did the
Government not change their mind at that point rather than now, welcome though it is that we have now reached agreement?
Amendments Nos. 73 and 74 make what the explanatory notes call “minor drafting changes” to schedule 7. Amendment No. 73 excises the phrase “member State” and replaces it with “relevant European State”. Often, these things can be absolutely fundamental, given how European legislation tends to work, but as far as I am aware, the relevant sections of the Medical Act 1983 have not been amended to read “relevant European State” instead of “member State”. Will the Minister explain the substance behind the amendment and why it is being made? Surely “member States” are easily definable and “relevant European States” less so.
The amendment may not be so much a “minor drafting change”, although it must be thought to be that, given that the phrase is in the explanatory notes. It just worries me that it could be a definitional read-across that it is important to recognise, given that at the moment there is the introduction under European legislation of the 48-hour week. That is having a major effect on how health services can be provided in our country, let alone in other member states. We should have uniformity of definition.
In answer to a written parliamentary question of mine, a Health Minister recently accepted that there was a great raft of member states that had not agreed to impose the 48-hour limit on the working week of those in the medical professions. We wonder whether a sleight of hand may be behind the issue. As I say, I have no reason to believe anything other than what is in the explanatory notes, but it is extraordinary that we should be asked to replace “member State” with “relevant European State” without an explanation, given that these things often carry such important cross-referencing in legislation.
Amendment No. 82 ensures that the Council for Healthcare Regulatory Excellence would not be able to take action on the case of any individual in respect of whom there were or had been proceedings before the Office of the Health Professions Adjudicator. We raised the issue in Committee. The Minister contended that he had already achieved that through what was then Government new clause 6. He said the new clause meant that possible disputes about whether the council had the power to consider individual cases would be avoided. Why, then, were the Government unable to get the issue right in the first place? That question is left hanging in the air. The other matters in this group of amendments need not detain us any longer.
Mr. Bradshaw: On the removal of the Secretary of State’s power of direction over the Council for Healthcare Regulatory Excellence, I should say that we did listen to the debate, both in Committee and the other place. We also spoke to the chairman of the CHRE, and we changed our minds. I ended up agreeing with the hon. Member for Eddisbury (Mr. O'Brien) on that matter.
I think that amendment No. 35 was originally tabled by the hon. Member for Romsey (Sandra Gidley) in Committee; she raised concerns about the possibility of malicious complaints being made. The amendment is an attempt to address those concerns by ensuring that information must definitely reveal a threat to public safety if it is to be shared. We also made it clear in the
amendment that the appropriate Minister, when making regulations under clause 116,
“must have regard to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made.”
We have been seeking advice from an expert group whose conclusions will be published in the autumn. We will then consult on the principles that will underlie the regulations and guidance and, in due course, on the draft regulations themselves.
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On responsible officers, we provided an outline of the delegated powers memorandum prepared for the Bill—a copy is in the Library—and we will shortly issue a consultation paper setting out in more detail the proposed content of regulations and guidance. I remind the House that responsible officers will not take decisions about a doctor’s career. Decisions about revalidation and whether to investigate in fitness to practise cases will still be taken by the General Medical Council, and decisions about employment will be taken by the employer. In addition, we will provide detailed guidance for responsible officers to ensure that they document concerns only when that is appropriate. Doctors will be able to see and challenge what information is kept about them on file.
The hon. Member for Eddisbury had a couple of queries about some of the technical amendments. On amendment No. 62, clause 162(1)(b), as drafted, provides that order-making and regulation-making powers or amendments to such powers contained in the Bill will generally come into force with Royal Assent. The amendment clarifies that that will not apply to clause 106 and schedule 8, which contain amendments to the order-making power in section 60 of the Health Act 1999. Other provisions in schedule 8 will need to be commenced prior to the order-making power being used and commencement of certain aspects of the provisions, as subject to consultation with Scottish Ministers under clause 166(1). The amendment ensures clarity regarding the commencement of these provisions.
Mr. Stephen O'Brien: I appreciate that this is a technical matter, but the Minister will understand that there are commencement dates and people need to make their plans. I may have misheard him, but I think he said that schedule 8 will need to be implemented before the main part of the Bill. That is the first time I have come across that in this House. I assume that a schedule can come into force before the main body of the Bill to which it relates.
Mr. Bradshaw: I do not think that that is the case, but I undertake to write to the hon. Gentleman with clarification.
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