 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Health and Social Care Bill |
Health and Social Care Bill |
The Committee consisted of the following Members:John Benger, Celia Blacklock,
Committee Clerks
† attended
the
Committee
WitnessesLady
Justice Smith, Judicial Office
Professor
Sir Graeme Catto, President, General Medical
Council
Findlay Scott, Chief Executive,
General Medical Council
Dr. Hamish
Meldrum, Chairman of the Council, British Medical
Association
Dr. Laurence Buckman,
Chairman of the GP Committee, British Medical
Association
Frances Blunden, Principal
Policy Advisor (Health), Which?
Helen
McCallum, Director of Policy,
Which?
Councillor David Rogers, Chair,
Local Government Association Community Well Being Board, Local
Government Association
Anne Williams,
President, the Association of Directors of Adult Social Services, Local
Government Association
Public Bill CommitteeTuesday 8 January 2008(Afternoon)[Derek Conway in the Chair]Health and Social Care BillFurther written evidence to be reported to the HouseH&SC 17 Mental
Health Act
Commission
4
pm
The
Chairman:
It is now four o’clock and we have a
fairly tight timetable to get through. Obviously, Jimmy was chairing
the Committee this morning. Before we begin, does anyone have any
preliminary points to
make?
Angela
Browning (Tiverton and Honiton) (Con): How long before our
proceedings today will be available to
read?
Angela
Browning:
So will we be able to read and quote from
today’s proceedings during Thursday’s
debate?
Lady Justice
Smith, thank you very much for coming to the Committee to answer my
colleagues’ questions. As you know, we are on a fairly tight
time scale and our session must end at 4.40 pm, whoever is speaking,
and whatever stage they are at in their
sentence.
Lady
Justice Smith:
Yes.
The
Chairman:
Forgive our rudeness if that occurs. Before I
invite my colleagues to put any questions, perhaps you would tell the
Committee a little about yourself and say a few words. We shall then
move straight to
questions.
Lady
Justice Smith:
Briefly, my job at the moment is Lady
Justice of Appeal, a judge of the Court of Appeal. I have been doing
that since November 2002. Before that I was a High Court judge in the
Queen’s bench division, doing a mixed bag of crime and civil
work. I went off to do the Shipman inquiry in January 2001. It took me
four years, I am afraid—twice as long as the Lord Chancellor
warned me that it would, but there it is. That is the basis of such
expertise as I have on these matters.
I must warn you, before you
start questioning me, that since I returned to my day job in January
2005, it has not really been possible for me to keep up as well as I
would like with day-to-day developments in medical regulation. Of
course, I have a maternal interest in the
recommendations that I made and their progress, or lack of it, through
legislation, but you will have to forgive me if I am not aware of
everything that has been going on since January 2005. I do not have
access, now, to the kind of materials that I had during the
inquiry.
The
Chairman:
Thank you for that. My colleagues understand
that there are certain questions that you cannot answer because of your
position. If, at any stage, you feel that the questions are not
appropriate, feel free to
say.
Lady
Justice Smith:
I will say so, but
generally any difficulty will arise out of individual cases. I cannot
imagine that you are going to ask me about
those.
Q
6161
Sandra
Gidley (Romsey) (LD): The Bill makes a number of changes
to the regulation of health care professionals, particularly in
medicine. Are the changes proposed in the Bill broadly in line with
your findings and
recommendations?
Lady
Justice Smith:
Yes, broadly, but this is very much a
bare bones Bill. A huge amount of detail will be left for delegated
legislation. One of my difficulties at the moment is seeing exactly how
it will work because so much is left for secondary legislation. I
welcome the creation of an independent adjudicator and the change to
the standard of proof, which were recommendations of mine. I am
particularly concerned that I do not understand how re-validation will
work. The Bill gives only the vaguest of clues about how it will work,
and I am a little worried about that.
As far as the independent
adjudicator is concerned, I know that the General Medical Council has
put in a memorandum, which it kindly showed me in advance, expressing
concerns about the independence of the adjudicator, and I share those
concerns. It is vital that an independent adjudicator should be
independent of Government as well as the GMC. The purpose of my
recommendation was that we should have someone adjudicating who is
independent of the GMC because it cannot properly be investigator,
prosecutor and judge in the same causes. I was concerned about its
human rights compliance. That has been accepted, and we will now have
an independent adjudicator, but it should be independent of Government
as well as the GMC.
Q
62
Sandra
Gidley:
Thank you for that. I believe that you also made
some recommendations about the proportion of lay members. Will you
elaborate on them? Did they just seem like a good idea, or did you have
any evidence to back them
up?
Lady
Justice Smith:
I did not have much evidence about
what the proportions should be. I felt that the proportions were wrong
in the GMC at the time and that lay members were not carrying
sufficient influence. I recognised that as the GMC was organised at
that time—and I think that this will change—it needed
quite a lot of medical members to carry out particular functions that
required professional qualifications. I did not want to denude it by
suggesting that the number of medical members should be reduced too
drastically. Besides, it might surprise you to know that I did not want
to frighten the horses too much either. I am very content with the
proposal here that there
should be equal numbers. I also see that the nature of the GMC is to
change so that it becomes less of a council and more of a board. How
that will work and whether it is a good idea, I just do not know. I
have no view on that.
Lady
Justice Smith:
Not just public perception. I wanted
to enhance the influence of the lay members within the GMC. I thought
that under the existing arrangements they were too much the
underdogs.
Q
64
Sandra
Gidley:
Okay. I have a final question. Would you like to
see any other changes to the Bill? Are we missing an opportunity
here?
Lady
Justice Smith:
There is one matter,
which you might feel is quite small. It relates to the fitness to
practise panels under clause 93, subsection (2) of which
states:
“A
fitness to practise panel is to consist of...a chair selected from
the lay members list or the professionally qualified members
list”.
I recommended that
adjudication panels should be chaired by legally qualified people. I
explained a number of reasons why I made that recommendation. The GMC
has never done it. It does not think that it is necessary but, of
course, we are not talking about the GMC. I had understood that the
chief medical officer was more or less in agreement with my proposal,
although I noticed that, in his review of my report, he just said that
there should be an independent adjudicator and that panels should be
staffed appropriately with those who are medically and legally
qualified and lay people. I understood from that that he wanted some
legal expertise on the adjudication panels, which is what I had
wanted.
Now I see that
the chair must be selected from the lay members or the professionally
qualified members. I then tried to find out the meaning of a
professionally qualified member, and the definition section under
clause 93(4) states that
a
“‘professionally
qualified members list’ means the list of persons eligible to
serve as professionally qualified members provided for by section
94(1)(b)”.
Section
94(1)(b) states that they
are
“persons eligible to
serve as professionally qualified
members”.
Around we go in
a circle.
I suspect
that the provision means medically qualified people, but that is not
made clear. I would like it to be made clear that there can be legally
qualified people on the panels. As the way in which the panels are to
work will be decided by the Office of the Health Professions
Adjudicator, not by Parliament—reference can be made to an
example, under clause 94(6), of the delegated legislation rules that
are to be made by OHPA—I should like the OHPA at least to have
the option of having legally qualified chairs. If you want me to give
reasons why I think that that is a good idea, I shall do so, but they
are set out in my
report.
I believe in
horses for courses and in professional expertise being matched to the
nature of the tasks in hand. Chairing a disciplinary tribunal is a job
for a legally qualified person, not a lay person. Legally qualified
people who appear in front of such tribunals are capable of running
rings round the tribunal if no
one on the panel is legally qualified. The proceedings would take a lot
longer than they needed to if there was not a legally qualified chair.
You would achieve a much higher standard of reasoned decision if you
had a legally qualified chair because writing a judgment, which is what
such a decision is, is a job that requires professional
expertise.
Q
65
The
Minister of State, Department of Health (Mr. Ben
Bradshaw):
May I return to something that you said
earlier, Lady Justice Smith, about the status of the independent
adjudicator? You kindly acknowledged that your recommendation stressed
the influence of independence from the GMC, but you now say that you
have some sympathy with the position of the GMC, which is arguing that
it should not be the proposed model that is an Executive,
non-departmental public body along the lines of the Independent Police
Complaints Commission. I wondered what your reasons were for that and
whether you had an alternative model in mind that would satisfy the
need for democratic and public
accountability.
Lady
Justice Smith:
May I suggest that I leave that issue
for the GMC? It has written a memorandum, which you might not have had
the chance to read yet. Representatives from the GMC are
here—there they are—and they will be speaking next. It is
a point that they feel strongly about. I confess that the lack of
independence of Government had not jumped out and hit me between the
eyes. It plainly has now and having read the memorandum, I am
sympathetic to that point. I would rather just leave it at
that.
4.15
pm
Q
66
Mr.
Stephen O'Brien (Eddisbury) (Con): Slightly moving on,
thank you very much for your observations on clauses 93 and 94. I will
be very surprised if there is not a Government amendment—if not,
I assure you that there will be another amendment from somebody
else—that will help to give some clarification.
The regulations that have just
been sent to us as members of the Committee who support this include
the phrase “in the wake of a number of high profile
inquiries”. Clearly that refers to what was I think in the end
six inquiries into doctors who had harmed their patients. The Office of
the Health Professions Adjudicator is being created as a new body able
to make adjudications and decisions. Are you happy with that
declaration of
provenance?
Lady
Justice Smith:
Yes. It was very
much a recommendation of mine. As I have said, I was concerned that the
GMC’s arrangements were not compliant with the Human Rights Act
1998. The GMC thought that they were; I thought that they were
not.
Q
67
Mr.
O'Brien:
That is clear, thank you. It strikes us that
there will be an opportunity to discuss the element of independence
that has been focused on in some of the questions and your replies.
That will probably take place early on Thursday afternoon in the
amendment that is tabled to clause 2(4), which in relation to the Bill
performing its functions of looking
at the commission, would insert what the Secretary of
State may “direct” instead of what the Secretary of State
may “advise”. That may be a turning point in deciding who
we look to for independence in that area. There will be an opportunity
during the discussions to focus on
that.
Lady
Justice Smith:
May I intervene for a moment? I notice
that the chairman—or chair as I must call it nowadays—of
the adjudicatory body, the OHPA, must be legally qualified. Where do I
find that provision? I think that it is under schedule 6, but I have
lost the piece of paper on which I had made a note of it. To
my mind that gives some reassurance. Here it is: schedule
6(4) states
“The OHPA is to consist
of the following
members-
(a) a chair
appointed by the Privy
Council”
Then schedule
6(6) states
“A
person may be appointed as the chair only if the person as well as
satisfying any requirements...has a 10 year general
qualification”
under the
Courts and Legal Services Act 1990. Broadly speaking, that means part
or full-time judicial capacity. That does indicate that there should be
a measure of independence. It is other aspects that the GMC is
particularly concerned
about.
Q
68
Mr.
O'Brien:
That is helpful. Thank you very much indeed. On
the role of the OHPA, in the various recommendations that you
made— and there were many—are you concerned about how the
appeal process might
operate?
Lady
Justice Smith:
The appeal from the
OHPA?
Lady
Justice Smith:
There will, of course, be two
different sorts of appeals from it in that some regulators will not be
within the adjudication body for the time being, although I understand
that it is the intention that they should join eventually. I do not
think that that should be a problem. I have not spotted the
provision—it may be that it is not there, but I think that the
GMC would be shouting if it was not—that states that the GMC is
entitled to appeal from a decision. Is there such a
provision?
Lady
Justice Smith:
I have not managed to take on board
every single provision. Provided the GMC has a right of appeal, which
presumably replaces the old Council for Healthcare Regulatory
Excellence provision under section 29, the same process would continue
for the other bodies that are outside the adjudicator. The CHRE will
appeal from the regulatory bodies who are doing their own thing. The
GMC, as a party, will have a right of appeal from the independent
adjudicator—that seems all right to me—and the doctor
will too. Are you worried about that, because that seemed to be all
right?
Q
70
Mr.
O'Brien:
I do not wish to get into how we will need
to scrutinise the Bill in later stages because we are taking your
evidence rather than mine, but I am concerned that when the powers of
adjudication come
into being, we will be dealing with a person’s livelihood as well
as the overriding concern of patient care and safety. We need to strike
that balance. Someone else will ask you about the burden of
proof—
Lady
Justice Smith:
Standard of
proof.
Lady
Justice Smith:
That is all right. There has never
been an argument about the burden of
proof.
Q
71
Mr.
O'Brien:
Looking at the standard of proof, I see that it
is to be a graded approach depending on the outcome, and I have
difficulty with that. How can you know what standard of proof you need
until you have heard what is at stake and the evidence? Often, the
standard that you would expect to apply would probably have to be set
at the beginning. Otherwise, everyone would be moving at the same time,
and I am struggling with that.
Lady Justice
Smith:
Have we done with the problem of
appeals?
Lady
Justice Smith:
I am not worried, which is to say that
I am happy, with the proposed appeal arrangements. On the standard of
proof, I recommended that we move to the civil standard because,
essentially, we are talking about a protective rather than criminal
jurisdiction. I know that the consequence could be loss of livelihood
or serious damage to it, but my view, which seems to have been
accepted, is that adequate protection could be given to a doctor within
the framework using a civil burden or standard of proof. I am pleased
that that has been proposed and I imagine that it will go
through.
How the
measure works in practice will require considerable training. That is
one of the reasons—I am glad that you mentioned it and that I
remembered—for having a legally qualified chairman. The chairman
will understand how it works. If you tell a lay person how to apply the
sliding or variable standard of proof, they might find themselves in
some difficulty, but a lawyer would not. You do not want a legal
treatise now on how it works do
you?
Q
72
Mr.
O'Brien:
Well, it is not in the Bill. I do not want to
over-pursue my line, but that is not in the
Bill—
Lady
Justice Smith:
No, it is just says the civil
standard.
Lady
Justice Smith:
Well, the civil standard of proof is
part of the common law of England, and there are judicial decisions
that explain it. Those must be incorporated into how the adjudicatory
body—
Lady
Justice Smith:
Yes it does—many. It applies
particularly in fraud cases, for example. The notion is that if you
make a serious allegation against someone,
you need cogent evidence before you find it proved. If you make an
allegation of negligence, it is not so serious. You could be 51 per
cent. satisfied that x happened rather than y, and that would be
enough. However, if you are thinking whether someone has deliberately
told lies in an attempt to defraud x, you would need to be a little bit
more than 51 per cent. sure. I do not want to say 60 or 70 per cent.,
but there is a higher standard of proof, which is what this is all
about.
It applies
also in cases in which someone is, for example, accused of murder but
has not been convicted and a civil action is brought for wrongful
death. In such a case, the judge would apply a higher standard of proof
than he or she would when considering an allegation of negligence. For
example, if there were allegations that a doctor had indecently
assaulted patients, you would require fairly cogent evidence before you
would convict him.
The
Chairman:
Angela Browning, I was going to come to you next
but we have moved into an area on which Anne Milton would like to ask
some questions, so it makes more sense if we pursue the standard of
proof issue.
Q
75
Anne
Milton (Guildford) (Con): Thank you, Chairman. To some
extent, you have covered what I was going to ask. For clarity, you
recommended and approved of the move to a single standard of proof, and
you would like to see legally qualified
chairs?
Lady
Justice Smith:
Yes.
Q
76
Anne
Milton:
If there were not legally qualified chairs, would
you then have your doubts about the single standard of
proof?
Lady
Justice Smith:
No, I think it is right
anyway,
Lady
Justice Smith:
I think it is right anyway, but I
tagged that on as one of the additional reasons why I want a legally
qualified chair. There are many reasons why I think that we should have
a legally qualified chair, the main one being that to do the job well
requires legal expertise, for the reasons that I explained a moment
ago. An understanding of the sliding standard, the variable civil
standard, is just one little example of the expertise that would be
brought to the task by a legally qualified
chair.
Lady
Justice Smith:
Of which
profession?
Q
79
Anne
Milton:
The medical profession. There would be more
competence in the system with a legally qualified
person.
Lady
Justice Smith:
I would have thought
so.
Lady
Justice Smith:
All our tribunals have legally
qualified chairs. It is quite bizarre to me that somebody
should struggle with the job that is really a professional legal job, in
important circumstances, such as these disciplinary proceedings,
adjudication panels are.
Q
80
Angela
Browning:
I will be brief because you have covered a lot
of what I was going to ask you. During your initial remarks you said
you felt that the OHPA should be independent of Government and you
mentioned that the GMC had provided you with the briefing that it has
also sent to
us.
Lady
Justice Smith:
You have it
there.
Q
81
Angela
Browning:
I do. Looking through the case that the GMC
makes, it says that it believes that the Bill extends the ambit of the
state quite considerably. It prays in aid in its document, for example,
the requirement to keep accounts as specified by the Secretary of
State.
Lady
Justice Smith:
I do not feel strongly about
that.
Q
82
Angela
Browning:
Perhaps not so much. I understand that one of
the GMC’s grievances is that this has not gone out to proper
consultation and that the measures were not recommended in your report
or other similar reports. Would a consultation resolve that problem and
make the
case?
Lady
Justice Smith:
It might. I did not make any
recommendation about independence of Government because that was not
what my mind was focused on; I was focused only on independence of the
GMC. However it is important, particularly in the health sphere, that
the adjudicatory body should be seen to be independent of Government
because the Government are a huge customer of healthcare; the biggest
customer of healthcare. Therefore, it is important that there should be
no suspicion that the Government are in a position to pull strings
behind the scenes, as to what goes on. Absolute clarity and absolute
independence are really important. As I say, the fact that you are
apparently intending to have a judicial figure as the chairman of the
adjudicatory body gives me some confidence. What one wants is a degree
of judicial
independence.
Q
83
Mr.
Bradshaw:
As we have a few minutes left, the following
question might be helpful for me and other members of the Committee.
The Bill deals with a number of other issues. I think that I am right
in saying that if they were not direct recommendations that you made,
they were things that you would approve of: lay parity; responsible
officers; appointments not
elections.
4.30
pm
Lady Justice
Smith:
Let us talk about responsible officers for a
minute. 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. If you have read my revalidation chapter in the fifth
report—it is long and I would not criticise you for a moment if
you have not—you will know that I was very concerned 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, which is
what I was afraid that it would
be.
I cannot tell from
the Bill how it will work, which bothers me. I am worried about
responsible officers; I see that they can be appointed by employers and
that it is envisaged that medical directors of trusts will also be
responsible officers and that they will have some role—I do not
know what—in revalidation. I am really unhappy about that for
several reasons. First of all, 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. 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.
I do not know what is happening
about GMC affiliates, which are not mentioned in the Bill but,
according to the chief medical officer’s review, are the
responsibility of the GMC. I liked the CMO’s proposals for
revalidation. He picked up on my ideas, ran with them and took them
further. I was delighted with that. I was fed up with waiting for him
to produce the review, but when he did, I thought that it was well
worth waiting for. However, I cannot see the extent to which his
proposals are implemented in this Bill, which bothers
me.
Lady
Justice Smith:
Appointments?
Lady
Justice Smith:
I am opposed to elections. I made that
plain. I had very good material before me on how the GMC system was
working, and it is not right that a member should have a
constituency.
Q
85
Mr.
O'Brien:
Just one. I am looking now at the part of the
fifth report where you highlighted the role of the Healthcare
Commission in complaints handling. Are you concerned that the private
sector patients in the NHS and self-funders in the social care sector
do not have adequate access to complaints procedures, and that this
legislation removes the Healthcare Commission’s
complaints-handling
remit?
Lady
Justice Smith:
I do not know what will happen about
complaints handling. When I produced my report on complaints, new draft
rules were on foot. The Department rang me up and said, “Would
you like us to put them on hold for a few weeks while you produce
your report?” I said, “That seems like a good idea,
because I am going to make some recommendations on that.” Ever
since then, there have been no amendments to the complaints-handling
arrangements. At the time of my report, the Healthcare Commission was
just in the throes of setting up its complaints-handling set-up. From
what I heard about it, and from the personnel involved whom I saw and
heard evidence from, I was concerned that it was not going to work very
well. I think that that has been borne out by experience—I think
that it has been a disaster. It has a huge backlog and there is great
dissatisfaction among patient representative groups about how it is
working. The Department must go back to square one and sort out a
proper second tier. I do not know how it is going to be done in the
Bill. I do not know whether any proposals are made in it—there
are none that I have
seen.
Lady
Justice Smith:
Right. Well, it is urgent, because
health care complaints are in a mess and causing great dissatisfaction.
You can go back and examine some of the things that I said, but at the
time when I wrote I was content to give the Healthcare
Commission’s attempts a whirl. They were new, and it appeared
that they ought to be able to do the job properly, but they have
not.
The
Chairman:
May I thank you for coming before the Committee
this afternoon and giving evidence? It is much appreciated. Thank you
very much for your
time.
We were due to
start this next section at 4.40 pm, so we are well in hand. Before we
do that, Anne Milton, do you want to make an
observation?
Anne
Milton:
Yes, just to declare that my husband is a
qualified doctor and a public health physician, and
therefore—[Interruption.] I am
sorry?
Anne
Milton:
For the record, my husband is a
qualified medical doctor and a public health physician, and therefore
his job might be implicated by this
legislation.
Although it
is not exactly 4.40 pm, we can move on if our witnesses and the
Committee are ready. I think that we shall do so to make some progress.
Thank you for coming before us. Would you first like to introduce
yourselves to the Committee? My colleagues have some questions that
they would like to put to you when you have had your
say.
Sir
Graeme Catto:
Thank you very much
for allowing us to join you. I am Graeme Catto, I am a physician, and I
have been president of the General Medical Council since 2002. As you
will be aware, our primary purpose is patient protection, so we welcome
many of the clauses of the Bill.
Findlay
Scott:
Good afternoon. I am Findlay Scott, I am the
chief executive of the GMC, and I have been there since
1994.
The
Chairman:
Is there anything that you would like to say to
the Committee before we put questions to
you?
Sir
Graeme Catto:
Just that, because our primary purpose
is patient protection, we welcome many of the clauses and many of the
issues raised in the Bill. We have sent round a note, which I
understand most of you have received, indicating one area of concern,
but it is one area. We have very few other areas of real concern to
bring to your attention. The area that concerns us is the independence
of the independent adjudicator.
As you probably know, all our
arguments have been advanced on the understanding that independence is
important. It is important for the council itself—that is why we
have argued for equal numbers of lay and professional people on it, so
that we are seen to be independent of the profession and any vested
interest. At present, adjudication is undertaken by the General Medical
Council, which itself is quite independent of the monopoly employer. We
are facing a situation where there are clear links between the new
adjudicator and the Department of Health, and that gives us cause for
some
concern.
Findlay
Scott:
No, thank
you.
The
Chairman:
All right. Laura, I wonder whether I can ask you
to lead the batting for the
Committee.
Q
87
Laura
Moffatt (Crawley) (Lab): Professor Sir Graeme,
you kindly gave us a briefing note, and it was very helpful to us that
you clearly said that the general direction of travel is exactly what
you would like to see. You touched on your area of concern. If the Bill
were to change, in what direction would you like it to change, and what
specific measures would you put in place to promote so-called
independence, about which you are concerned?
Sir Graeme
Catto:
Within that memo, we have mentioned some
issues that might help to address the problems that we identify. The
least important are the financial issues, which we discuss in general
terms. Our concern starts from the difference between what was proposed
in the White Paper and the Bill. It is not clear to us how that
important definition of independence will be taken forward, given the
new remit of the independent adjudicator. Some issues can be addressed
by securing from the Department and in the Bill a guarantee of
independence about the status of the adjudicator. That might be
combined with a report to Parliament directly, rather than through the
Secretary of State for Health.
We also want
to touch on the operational effectiveness issues that relate to the
independent adjudicator. Finally, we want to consider effectiveness and
value-for-money issues. There may be some questions about other models
that might be considered—other models that would provide the
safeguards we seek. I am happy to discuss those with you,
too.
Q
88
Mr.
Stephen Crabb (Preseli Pembrokeshire) (Con): On the office
of the health professions adjudicator, perhaps we can take a step
backwards. Will you tell the Committee why we need a new and separate
body to take over from
yourselves?
Sir
Graeme Catto:
Lady Justice Smith explained it
reasonably well in the previous sitting. The issue is as much about
perception as it is about reality. If you consider the effectiveness of
the General Medical Council and the way in which we have organised
cases in the past, we have done pretty well. The proportion of
decisions that are opened up to review, go through either the High
Court or the Court of Appeal and are reversed is very small. On
effectiveness, it is hard to see how any new body would do better, but
there is the difficulty of being perceived to be judge and
jury—of being partly comprised of doctors, but making decisions
about doctors. We have said in the past, and it is still our position,
that the factual case has not been made, but if that is the view of
Parliament or the Government, we are very happy to work with you to see
how best we can produce an effective new
adjudicator.
Q
89
Mr.
Crabb:
So, just to be clear, the problem of perception
notwithstanding, you do not believe that there are any substantive
deficiencies or problems with your processes?
Sir Graeme
Catto:
No, Lady Justice Smith mentioned the Human
Rights Act and European legislation. There are differing legal views on
it, and not everyone would agree that it creates a problem, so from our
perspective, the issue is about perception rather than factual
necessity.
Findlay
Scott:
If I may just deal with the civil rights
issue, the European convention on human rights point has been tested in
the courts, and our arrangements were found to be compliant. Lady
Justice Smith’s concern in her report was that at some point in
the future, when the requirements become more rigorous, the
arrangements might be found to be non-compliant. Currently, however,
they are undoubtedly
compliant.
Q
90
Angela
Browning:
You said that apart from the briefing that you
sent us, you are generally content with the Bill. In clause 92, the GMC
will still be able to publish guidance telling the OHPA what sanctions
to impose on professionals found unfit to practise, but it will lose
responsibility for conducting the work itself. I assume from what you
have said that you are happy, because that is a classic example of
judge and jury. Do you agree?
Sir Graeme
Catto:
I am not sure that it is a classic example,
but we have received assurances from the Minister that our standards
will apply. We set the standards for the medical profession in the
United Kingdom, and if the regulator is to be responsible for the
integrity of the register, it is important that all doctors abide by
those standards. We have assurances that our standards and indicative
sanctions on the panels will apply. As I understand it, the concept is
to remove adjudication away from the GMC to an independent adjudicator,
but everything else remains more or less the
same.
Q
91
Angela
Browning:
May I follow up with a supplementary question?
Can you update us as to the GMC’s position on the question of
doctors who are deemed to be fit to practise, but who offer themselves
as expert witnesses in disciplines in which they clearly do not have
the sort of experience that one would expect from somebody who puts
themselves forward in that position? How does the GMC address that
matter?
4.45
pm
Sir
Graeme Catto:
Let me move from the specific to the
general to begin with. Our guidance states clearly that all doctors
should work within their competence. That applies to doctors in any
situation, including working as an expert witness. We have issued
further guidance for doctors who work as expert witnesses, and Findlay
may wish to speak on that.
Findlay
Scott:
Yes, I would like to add to that. In 2006,
there was a case at the Court of Appeal testing the proposition
advanced by a judge in the High Court which stated that expert
witnesses should be outside the reach of the regulator. We resisted
that strongly and we won in the Court of Appeal. Our position is clear.
As Sir Graeme says, doctors should practise only within their
competence. If they do not do so—and that includes acting as an
expert witness when they are not an expert—then we will not
hesitate to take action.
Q
92
Mr.
O'Brien:
We kicked off with Laura Moffatt moving into the
question of independence, and we have heard from Lady Justice Smith and
yourselves. You talked about seeking to secure a guarantee of
independence for the Office of the Health Professionals Adjudicator,
and to ensure that it delivers value for money. As we scrutinise the
Bill, it is important for us to understand how it will impact on
specific amendments in order to establish that. General information,
unfortunately, has now got to reach the detail, and there are a number
of amendments tabled that we will look at in order to tease this
out.
One of the areas
that I feel very un-briefed on, as we move toward a line-by-line
discussion of the legislation on Thursday afternoon, is the argument
about independence. I would like to know what point the GMC has
reached, either with the Department or in its own understanding in
discussions, in securing the OHPA’s operational effectiveness.
What will be the financial arrangements for the cost of the OHPA? Will
they eventually fall back as a burden on the profession? Will they be
met from central funds? Where is the understanding? As an Opposition
Member who has looked at this carefully, I am at the moment feeling
somewhat unsighted, so I would grateful if you helped me out.
Sir Graeme
Catto:
There are two issues which are separate but
linked. One is the question of independence, and the other is that of
value for money and how we will deal with that. If we take the
independence issue first: we have had helpful discussions with the
Department over many months, but comparatively late in the day, towards
the end of November, came the suggestion that the independent
adjudicator might be an executive non-Departmental
public body. I am no expert, but I understand that that leads inexorably
back to the Secretary of State’s being responsible for the
organisation and, in effect, being the sponsoring officer for that
body.
Sir Graeme
Catto:
Yes, but nevertheless, in legislative terms
the Secretary of State holds overall governance of the non-departmental
public bodies within his or her empire.
Sir
Graeme Catto:
So the question of independence from a
monopoly employer looms large with us.
If we return to the question of
money and who is going to pay for this, the General Medical
Council’s view—and my view—has been that if you
are going to run a professional organisation for a major profession,
you need to take responsibility for those people who fail to abide by
the appropriate standards. Therefore, to a large extent, the costs
should fall back on the profession. Having said that, it cannot mean a
blank cheque; we must have some understanding of where the additional
costs will arise. If you are going to set up a new organisation, there
will clearly be additional costs at the beginning.
We are close
to an agreement with the Department that those additional
costs—accommodation and all the other facilities that would be
required for a new organisation—will not fall directly back on
to the profession. They will not fall on to the General Medical
Council; we simply pass our costs on to the individual doctors.
However, there are a number of areas to be resolved in setting that up,
and there are technical matters such as whether or not value added tax
will be added. It is entirely possible that there could be an extra
17.5 per cent. simply to set this up, without getting any gain from it
whatsoever. There are quite a few issues yet to be resolved. The short
answer is that we are still in discussion with the Department and the
Minister.
Q
94
Mr.
O'Brien:
I would like to follow that up, briefly; perhaps
the Minister will speak about this, as well. From my point of view,
therefore, trying to understand our role in scrutinising the Bill, it
seems a bit unsatisfactory that there are unresolved matters. As you
rightly said, the point that I raised is both separate and linked, and
a lot of what we will find ourselves discussing may centre around what
we truly mean by establishing the principle, as well as the practice,
of independence. Unless those unresolved issues are resolved before we
get to that point in the Bill, we will have a cart-and-horse situation.
Do you feel the same, or do you think that I am perhaps being a little
too
pedantic?
Sir
Graeme Catto:
No, from my
perspective it has been unfortunate that the question of independence
came up so late in the day and without our understanding what was
happening. The financial issues are important, but probably less so.
That is my
feeling.
Findlay
Scott:
There are issues of substance and of
perception. I have no doubt that Ministers on the Floor of the House
will offer assurances about their desire not to interfere in day-to-day
decisions, and that may
deal satisfactorily with the substance. However, we
remain concerned that the major issue is one of perception. The fact is
that under the Cabinet Office guidance, as I understand it, an NDPB is
clearly defined as being a governmental body rather than a
non-governmental body. There has been no role for a governmental body
in the regulation of the medical profession for 150 years. Therefore,
this is something that cannot be lightly ignored as we move into a new
arrangement. Notwithstanding the practical assurances that can be
given, there will be a significant shift in
perception.
Q
95
Mr.
O'Brien:
That is why I used the expression
“arm’s length”. What one would want to achieve as
we go through the detail is possibly to move away from a
non-departmental body, however it is defined, to an arm’s length
body. That should be set in the Bill as a matter of principle rather
than a question of perception, which I think will be rather
important.
Sir
Graeme Catto:
If I may come back on that, somebody
asked Lady Justice Smith at some point if she might be able to suggest
other models that might link in, and the Minister mentioned the
Independent Police Complaints Commission. In a sense, that is not a
very fair analogy, because the IPCC does not make the final decisions.
If issues come out of the IPCC, they end up being determined by the
courts—a truly independent arrangement—whereas this is
the adjudicator, an apparently independent adjudicator, on our
part.
There are quite
a few other organisations that would pretty much fit the remit. One, of
course, is the Solicitors Disciplinary Tribunal itself, which is quite
independent. Members are appointed by senior judges, but the tribunal
remains completely independent of the Government. There are different
models that could be used. It is not as if we are seeking to establish
something that is completely de novo. Models exist for this
situation.
Q
96
Mr.
Bradshaw:
Sir Graeme has partly answered the question that
I was going to begin with—that is, what exactly is not
independent enough about an NDPB? I was going to use the IPCC model,
but there are others. I think that members of the Committee need a
little more clarity about exactly which alternative model you prefer,
or whether you would simply be looking for special guarantees about
independence within an NDPB model.
There are a couple of follow-on
questions from that. Is it not the case that the more distant and the
more independent, the less power there is for any financial control or
control of costs, which I know is of great concern to the GMC? Also,
how does one ensure democratic—that is,
public—accountability the more distant an independent body is
from any governmental oversight or
control?
Findlay
Scott:
In a sense, the easy answer to the
Minister’s first question is that we would like a body rather
like the GMC to run adjudication. It is a statutory body; it is not a
non-departmental public body. The White Paper published in February
2007 very helpfully proposed that the GMC should be accountable to
Parliament. There has never been any suggestion that we should be
accountable to or within
the ambit of the Secretary of State, as an NDPB would be. It must be
possible to create an independent statutory body of the GMC’s
kind, while retaining accountability to
Parliament.
Findlay
Scott:
Cost control is clearly an
issue. I hesitate to speak for the entire council. I think we start
from the assumption that mechanisms can be found to ensure that costs
are reasonable, but the principle of independence is one which has been
at the heart of the council’s proposals since November 2006. I
am very glad that the Government endorsed and picked up those points in
the White Paper. In a sense, if the trade off was between more
independence with the risk of less control over costs, I think that
that is a trade off that the council would accept, because of the
importance that it has consistently attached to the need for all
elements of the regulatory system to be independent of the
near-monopoly supplier of health
care.
Q
98
Mr.
Bradshaw:
Would it be fair to say that the GMC has moved a
considerable distance on a number of issues over the recent years, and
that that has not always be easy for your
council?
Sir
Graeme Catto:
It is very interesting that, as the war
is being fought outside our building, we have been quite united within
it. It has not been a troublesome or a turbulent council, so the
recommendations in the Bill reflect very much the views of the
council.
Sir
Graeme Catto:
We have lively debates every time we
meet, but they have been friendly and collegial. We have had less
turbulence in the past few years than we had during the 1990s, as a
council.
Q
100
Mr.
Bradshaw:
The British Medical Association does not like
the way that you have shifted your position, does it?
Sir Graeme
Catto:
We are quite separate from
the BMA. We are not a trade union organisation. We are quite
independent of the professional body—that is the great advantage
in the United Kingdom of having two separate organisations. We are
totally independent of the
BMA.
Findlay
Scott:
That is why the council attaches such great
importance to ensuring that we can command the confidence and support
of all the key interests: patients and the public,
the profession, the NHS and other health care providers, medical
schools and medical royal colleges. The council came to a very firm
conclusion in 2006 that if confidence and support depended on the
presence of a majority, then clearly it could only command the
confidence and support of one interest group. That was not acceptable
for a regulator, hence the module based on parity, which the council
proposed and, I am delighted to say, you have
endorsed.
Q
101
Richard
Burden (Birmingham, Northfield) (Lab): May I ask a couple
of questions about the standard of proof in medical malpractice cases?
In
your public affairs briefing of 30 November you
described the suggestion to change the burden of proof from the
criminal to the civil standard in medical malpractice cases. You said
that you saw the application of a civil standard of proof
as
“consistent with
protecting patients and the public interest”,
and at the same time
“fair to doctors”. Is that still your
view?
Sir
Graeme Catto:
It is more than our view, it is now our
policy. The council took a decision at the beginning of December that
we would be moving, regardless of legislation, from a criminal to a
civil standard of proof, for the reasons that you have just given and
for the reasons that Dame Janet gave.
Q
102
Richard
Burden:
There are some who have suggested that to move to
a civil standard would be unfair to the medical profession. What is
your answer to
that?
Sir
Graeme Catto:
I think that it is based on a
misunderstanding of the way the civil standard of proof can accommodate
cases of significant severity. My understanding is that the amount of
evidence required and the cogency of the argument need to be increased
in accordance with the severity of the charges and, therefore, the
likelihood of the severity of the sanction on the individual
practitioner. Without going into sliding scales, the civil standard
itself can accommodate that type of case. Already, six of the
regulators have moved to the civil standard of proof, and it seems to
be working well for them. I do not see any reason why it should not
work well for doctors.
Q
103
Richard
Burden:
Do you have any idea, or would you speculate at
all, on whether, if the standard of proof was changed to the civil
standard, you would expect any change in the number of doctors who may
be found guilty of malpractice or
misconduct?
5
pm
Sir
Graeme Catto:
We think it is not going to have any
significant effect at the serious end of the spectrum. The situation
for doctors who at the present time are erased from the register
because of serious issues relating to fitness to practice would remain
unchanged. There may be an impact on doctors whose practice has failed
to a lesser extent and whom the council may therefore be able to pick
up at an earlier stage in the process—not to seek erasure or
that sort of sanction, but perhaps to make sure that they abide by
conditions and undertake appropriate training before the situation
further deteriorates. Looking at the numbers that we are dealing with,
we think that any impact is likely to be small and it is likely to be
at that end of the spectrum rather than at the serious
end.
Q
104
Greg
Mulholland (Leeds, North-West) (LD): May I ask a quick
question about evaluation of the impact of the Bill? First, will the
GMC be involved in evaluating the effect on professional regulation,
which is fairly key to the GMC? If so, could you give us some more
detail about how the GMC intends to do that?
Findlay
Scott:
We are fortunate in having developed a
partnership with the Economic and Social Research
Council. That partnership is leading to the development of a number of
research projects which we are funding through the ESRC public
partnership programme. Our intention would be to work with the ESRC to
evaluate both the changes that will result from this Bill but also, as
Lady Justice Smith mentioned, the many other changes that will flow
from other forms of legislation.
Sir Graeme
Catto:
It is important that we do that. The evidence
base for regulation across the world is relatively weak, so getting
information and making sure that we can make changes based on factual
information will be extremely useful in
future.
Q
105
Sandra
Gidley:
I want to move on to responsible officers. We
heard some concerns raised in the earlier session. How do you see the
concept of responsible officers working in practice?
Sir Graeme
Catto:
May I start by moving
revalidation to one side? It is not in the Bill at the present time. As
you probably know, a number of working parties in the Department of
Health, with which we participate, are looking at that. Findlay is very
much involved in that, but it does not directly impact on the Bill at
this stage.
From our
perspective, the concept of the responsible officer helps us to bridge
what Liam Donaldson described as the “regulatory gap”
between what happens locally and what happens centrally. We believe
that quite a number of cases that come to us might be much better dealt
with at local level before necessarily being escalated up to us.
Clearly, we want to deal with the serious issues, but quite a number of
items that are brought to our attention might be much better dealt with
locally and we see the responsible officers working in that
way.
The Bill
indicates that we may have a role in the appointment of a responsible
officer, but we would see that only in the broadest of terms, seeking
to define what their role might be, rather than being involved in any
individual appointments of responsible officers. It would be very
helpful, from our perspective, to have people working in the local
areas who understood the GMC processes, knew when it would be sensible
to refer a doctor to us if they were concerned and could link more
effectively with our own staff.
Sir
Graeme Catto:
It is making the workload appropriately
based, rather than having it sucked through. It must be right that
people working in the local situation, where they are more aware of
what is going on, take greater responsibility for what is happening and
send centrally those cases that need to come our way.
Findlay
Scott:
Our starting point has consistently been, as
Sir Ian Kennedy said in his report on events in Bristol, that it must
be for the employer first and foremost to deal with issues of poor
performance and misconduct. The challenge within the national health
service has been translating that into effective practice. Clinical
governance has come a long way in the past 10 years. We see the
appointment of responsible officers as a further strengthening of local
governance and as a
reinforcement of local responsibilities. It also delivers a second huge
benefit to us—clearer arrangements for the interaction between
national and local regulation. It is not about shifting responsibility
because such responsibility already exists. The measure is about
clarifying and codifying responsibility, which has sometimes not been
lived up
to.
Q
107
Sandra
Gidley:
The Medical Protection Society has argued that
medical directors will not have enough time to act as effective
responsible officers, a view with which Lady Justice Smith went along
to a certain extent. Does the GMC have a view on
that?
Findlay
Scott:
Only in the
sense that for any function, adequate resources must be provided. It
will help no one if the responsible officer function is a theory rather
than a practice. There is a gain to be made. There is substantial
evidence from our procedures that early and effective action could have
saved doctors’ careers, if problems had been identified
sufficiently early and not allowed to drift. Clinical governance has
already made a substantial contribution to that. Responsible officers,
provided that the concept is adequately resourced, could further add to
the opportunity to identify problems early and
effectively.
Q
108
Sandra
Gidley:
You talk about being resourced adequately, but it
seems that we are talking about the time factor as much as finance. How
do you find more time in the day for the average medical director? That
is a challenge, is it
not?
Findlay
Scott:
I agree—it is a
challenge. When I talked about resources, I had primarily in mind the
scarcest resource of all—time. I have no doubt that trusts will
have to look carefully at the other responsibilities of medical
directors and consider how they can be
supported.
Q
109
Sandra
Gidley:
Do you concur with the view expressed by Dame
Janet that there is almost inevitably a tension between having such a
responsibility and wanting to keep your trained work force? On the
other side of the equation, you might be required to push people
through a procedure whereby they might lose their
job.
Findlay
Scott:
Many of us have seen a huge
change in the past 10 years. There was evidence 10
years ago that blind eyes were being turned, often to enable a service
to continue to be delivered notwithstanding the fact that the
professionals involved were not fully up to the job. The evidence of
our fitness to practice procedures today is that trust managements are
alert to their responsibilities and, like us, they have patient safety
very much at the forefront of their mind. Although there was such a
risk 10 years ago, it is much less today.
Q
110
Mr.
Bradshaw:
The supply of doctors, which has changed
significantly, would also make a difference to a responsible
officer’s reluctance or otherwise to get rid of a qualified
doctor.
Sir Graeme
Catto:
I am with Findlay on the matter.
I was a medical director some years ago. Having spoken to medical
directors recently, I think they would very much welcome clarity in
their role and knowing
precisely when they should pass things on. The concept that doctors are
protecting doctors whom they know to be a danger to patients is no
longer.
Q
111
Anne
Milton:
Moving back to the time needed to do the job, do
you share my concern that the danger for an organisation is that it
ticks the box marked “We have appointed a responsible
officer” and considers the job done, but there is no
resourcing—money and time are the same thing in the
NHS—or no additional resources are put in, or resources are
diverted because there is no new money coming in to fund the set-up.
The new set-up is ideal; as you rightly say, it is evident to most
people that resolving issues locally prevents bigger mistakes further
down the line, but it is enormously time consuming if done properly. It
is not something that can be squashed in on a job description. Perhaps
you are not as cynical as I am, but I am concerned that there will be
no additional funds to support the change, and that it will therefore
not be done
adequately.
Sir
Graeme Catto:
I do not think that you
can be president of the General Medical Council and a real
cynic—you must be unreasonably optimistic if you are president
of the General Medical
Council.
Your point is
absolutely right, but we keep looking at only one part of the NHS or at
only one part of medical practice, and not at the whole. The medical
director does not work in isolation: he or she works within a clinical
governance framework and there are clinical directors who know in much
greater detail what is happening in their specific specialties. If the
measure is to work, we will need to ensure that leadership and
management arrangements throughout the NHS make it clear to medical
students, doctors in training and established doctors precisely what
their role within the organisation is, as well as within the NHS
itself. We have been slow to do that in this
country.
Q
112
Angela
Browning:
May I return to the question before that one,
where you were talking about the changes you felt had been brought
about in the past few years, in terms of doctors turning a blind eye at
one time when they knew colleagues perhaps had some problems and
questions to answer? Could you just clarify for me where we are now?
This applies particularly to very senior doctors at consultant
level—the Minister will be only too familiar with this, as we
both share a general hospital in Devon, where some years ago a
consultant was suspended after an investigation and it turned out that
the problems we experienced in our hospital had been experienced in his
previous hospital. I would like you to talk us through how you sorted
the problem of one colleague—a senior colleague
perhaps—giving references to another senior colleague. Would the
medical directors be involved in that part of the process when people
move, at senior level, from one hospital to
another?
Sir
Graeme Catto:
May I make just a couple of points? One
is that I did not mean to sound complacent and say that we had cracked
this issue, because I am quite sure we have not. Indeed, the cases that
have come to us—with the possible exception of Harold
Shipman—all had a long history in the locality where the doctors
were known and action was not taken, for whatever reason. Often other
doctors were aware of
what was going on, so I do not want to sound complacent. I think the
situation has improved but I am not sure that we have cracked it
completely.
Q
113
Angela
Browning:
But within the hospital system, would you see
the medical director having a role in terms of new senior people coming
to work in the
hospital?
Sir
Graeme Catto:
Well of course they will, and as Dame
Janet Smith was indicating, when revalidation comes in, that will be an
absolute reality. In terms of getting references that may be
inappropriate, we have, as you probably know, already taken action
against a very senior doctor who was accused of doing precisely that,
so we take these things very seriously. The point you are making though
is that they ought to be dealt with long before they come to the GMC,
and it ought not to be part of a medical
culture.
Findlay
Scott:
If I may, two things: Sir Graham says that we
have been very clear on the issue of references, both in terms of our
guidance and also of the action taken. But also within the White Paper
published in February 2007, there is a very clear expectation that when
doctors move, information will move with them within the national
health service, which does not always happen at the moment. That is in
the context of revalidation, so one of the responsibilities of
responsible officers in relation to revalidation will be to pass a
package of information from hospital A to hospital B as the doctor
moves, so there should be no opportunity—as there has been in
the past—for a doctor simply to leave their problems
behind.
Findlay
Scott:
The same with GPs. There would be a
responsible officer for general practitioners and the same thing will
happen then: a package of information will follow all doctors in fact
as they move from one job to another. There will be a transfer process
from one responsible officer to
another.
Q
115
Mr.
O'Brien:
Immediately following on that discussion, and one
other issue: who will train—and have responsibility for
training—these responsible
officers?
Findlay
Scott:
Inevitably it will be a joint venture with the
NHS. Their responsibilities primarily will be local
responsibilities—for the reasons we discussed earlier—but
a key gain from the appointment of responsible officers will be the
opportunity for better co-ordination between local and national
arrangements, and consequently we very much want to play a large part
in their
training.
Q
116
Mr.
O'Brien:
That is something we could usefully seek to
ensure is properly articulated during the course of the Bill. It is no
good inventing a concept without having the practical ability to
deliver, and training is going to be key to this—particularly
because, as I read it, these are not going to be full-time equivalent
posts. They will be part-time responsibilities within other very
serious responsibilities, in all
likelihood, and the process is not going to work if we have very sharp
variability across the country. I am glad we have clarified that
issue.
The other point
I wanted to raise, as we have a few minutes left, is that I
presume—contradict me if I am presuming wrongly—that you
were with Lady Justice Smith when she talked about clauses 93 and 94,
about the need for a legal
chair?
Findlay
Scott:
Yes.
Q
117
Mr.
O'Brien:
And on the need for us to either look for a
Government amendment or to put one down to resolve that issue on the
OHPA? Also, could I ask your views on the balance between lay and
professional members, assuming there is a legal chair of the
adjudication panel? To have your views on that would be
helpful.
5.15
pm
Sir
Graeme Catto:
As I understand the Bill at the present
time, it does not preclude the possibility of having a legal chair.
Indeed, that has been the situation at the GMC for many years. We want
to have the best people as chairmen and it does not matter whether they
are legally qualified, lay people or whether they are professionally
qualified. We have always adopted that.
As regards the independent
adjudicator, I think it is for the independent adjudicator and for
yourselves to make that decision. It would be outwith the GMC’s
remit.
Findlay
Scott:
I wonder if I could answer that. There are
essentially two models in play. The current model, which is the one
envisaged in the Bill as it stands, is that the panel normally of three
or more people is supported by a legal assessor and the requirements of
the legal assessor are set out in the Bill. They have essentially to be
a senior lawyer. That is the system we operate at the moment.
As we were saying earlier,
judging by the consistent quality of the decisions that our panels
make, that system appears to work well, but it does not preclude the
possibility of the second model, which is to have a legally qualified
chair. I think if you were to insist on there always being a legally
qualified chair that would raise an obvious question—why do you
need a legal assessor?
What we have sought to do
within the current arrangements is persist with the model based on the
legal assessor but occasionally have legally qualified chairs where
that is an advantage. I would be cautious about having both a legally
qualified chair and a legal assessor. That would seem to be creating a
little more employment for lawyers than was strictly
necessary.
Q
118
Mr.
O'Brien:
I declare an interest, being a qualified
solicitor who was in practice for a few years before becoming
non-practising 19 years ago.
I found Lady Justice
Smith’s train of thought as to the merits of a legally qualified
chair very persuasive, as one might expect somebody of her calibre to
be. That said, perhaps as we take that issue forward—it clearly
is an issue that has been left on the table for this afternoon’s
proceedings—we may consider whether, if
one has a presumption or even provision for a legally qualified chair,
one would then dispense with the legal assessor or
assistance.
In terms
of the balance of lay members, currently an Order in Council cannot
impose a lay majority on the council of a regulatory body. The question
I had was whether we ought to be considering whether that needs to be a
consequence of what we are looking at. That might need to be reviewed.
If there were a lay majority, what would the GMC’s reaction be
to
that?
Sir
Graeme Catto:
We are looking at two slightly
different
things.
Sir
Graeme Catto:
The original discussion related to
adjudication panels, the ones we run now and the ones the new
independent adjudication panel will run. What I think you are talking
about now is the composition of the council itself. Our view has been
the argument of independence. We strongly believe in being independent
of Government and the Secretary of State and of any vested interest,
including that of the medical profession, which is why we argued for
equal numbers of lay and professional people. The council’s
current view is that that is what we believe strongly and we are
pleased that the Government have accepted that argument so
far.
Q
119
Kelvin
Hopkins (Luton, North) (Lab): I would like to reinforce
the point that Stephen O’Brien was making. I must say I found
the arguments of Lady Justice Smith very persuasive, compelling indeed,
about a legally qualified chair. One of the points she made was that it
would shorten proceedings because the chair would know what to do, know
the full legal implications of decisions being made and there would be
less need for a legal assessor if that were the case. No doubt there
are many other arguments but you sounded neutral; it sounded like a
lack of
enthusiasm.
Findlay
Scott:
I do not mean to be unenthusiastic about
anything Lady Justice Smith says. I think the key point is this: by any
objective measure, our panels make consistent, high-quality decisions
that are rarely overturned by the courts. So if there is an argument
for a legally qualified chair, I do not personally believe it lies in
the quality of the decisions. There may be real arguments in relation
to the ability of a senior lawyer to control the proceedings in a way
that constrains costs while remaining fair to doctors, and I think that
that is an argument that deserves to be fully
explored.
Sir
Graeme Catto:
May I just add that
all our chairmen go through an assessment procedure, so it is not just
a question of whether they fit into one category or another. They need
to clear that hurdle, regardless of whether they are legally qualified,
medically qualified or lay
people.
The
Chairman:
Sir Graeme and Mr. Scott, thank you.
We have sadly run out of our allotted time, but I think most people
have made the points they wanted to make and we are most grateful to
you for coming before the Committee. Your evidence was very much
appreciated. We invite the British Medical Association representatives
to take the chair.
If you are comfortable and ready
to go, can I thank you both for coming before the Committee this
afternoon? As you know, our session cannot go beyond 6 pm and my
colleagues have a number of questions, but if you would like to
introduce yourselves for the record, that would be
helpful.
Dr.
Meldrum:
I am Dr. Hamish Meldrum, chairman of council
at the BMA, also a practising general practitioner, now only one day a
week, I am afraid, in Bridlington in East
Yorkshire.
Dr.
Buckman:
I am Dr Laurence Buckman, I am a GP in north
London and the chairman of the BMA GP working group. We are responsible
for issues to do with revalidation, medical regulation and as such, I
am in regular contact with the
GMC.
The
Chairman:
I watched you with the Minister on
“Newsnight” last night, but I will not sneer like
Mr. Paxman, I promise. Anne Milton, would you like to put
the first
question?
Q
120
Anne
Milton:
Thank you very much. This is the BMA’s
opportunity to give full vent to your opposition to the move from the
criminal to the civil standard of proof, unless you have changed your
mind?
Dr.
Meldrum:
No, we have
not.
Dr.
Meldrum:
Well, just by way of introduction, contrary
to what might be believed, we are passionately signed up to wanting to
protect patients. But we believe that one of the chief ways of doing
that is to have a regulatory system that everyone, patients and
doctors, have confidence in. Hearing some of the earlier evidence, I
think that there has been a welcome move over the last few years to
more openness, more willingness to own up, not only to one’s own
faults but to faults in colleagues, and we would not want to see
anything that puts that back. Turning to your question on the standard
of proof, we have consulted very widely on that at meetings, at our
annual conferences and such like, and there is an overwhelming view in
the profession that that move would be seen to be a retrograde step,
partly for some of the reasons I have mentioned, and partly because
they feel that to take away a doctor’s livelihood, which is
effectively what you are talking about, on the balance of probabilities
would seem to be
unfair.
Dr.
Buckman:
Yes. I think that there are several elements
to the concern about the standard of proof. You talk about a sliding
scale as if, somehow, it will be different when you have got to the end
of the case. But of course, the standard of proof begins the moment
either party starts to speak. You do not know at the beginning,
necessarily, what evidence is going to produced during the course of a
hearing and it may turn out that the standard of proof that is tested
at the beginning of a hearing may subsequently be required to be
reviewed because it has turned out to be a more serious case than we
thought.
Most punishments that the GMC
can currently deal out are such that the GP, or indeed, most doctors,
will find it difficult to continue in practice of some sort. Anything
beyond a warning issued to a general practitioner is going to result in
their potential dismissal from future practice. That is quite serious.
You may not know this, but a single day’s suspension from the
list is enough to render you permanently off your PCT provider list.
That means that any punishment beyond a withholding gets you written
off. As a result of that, and the fact that the standard of proof will
be seen as softer, many perfectly good GPs—it will apply to
other doctors as well—will start to practise in a more defensive
way. That defensiveness includes both behaviour and what they do for
patients.
On the behavioural
theme, you may say that doctors should practise with an eye to being
defensive anyway, yet when it comes to doing things to patients, we
have opportunities to X-Ray them, to scan or to do other things to them
that may be perfectly reasonable in some senses but are inappropriate
in others—both in terms of cost to the Exchequer and in safety
terms.
For example, I
would be more tempted to consider investigating somebody with, say, a
CT scan. That might seem quite reasonable, but actually be
inappropriate—and be offering someone an excessive radiation
exposure—because I was concerned that I might somehow have to
answer for my actions later.
Dr.
Buckman:
Yes.
Q
123
Richard
Burden:
Perhaps I could explore that a little further. Is
the point you have put there that the standard of proof for a doctor
should generally be higher than one would expect in other sorts of
employment relationships?
Dr.
Buckman:
Yes.
Dr.
Meldrum:
I am not sure that we are
actually saying that. Obviously, we are here to represent doctors and
other organisations must look after their people as they think fit.
However, in areas where you are effectively taking someone’s
livelihood away, to do that on the balance of probability seems to us a
backward step.
Q
124
Richard
Burden:
Would you be aware that the standard of proof
based on the balance of probability would of itself be a significantly
higher burden than in virtually any other employment relationship,
where if someone were to lose their livelihood from, say, alleged gross
misconduct, all that an employer would have to demonstrate to a
tribunal would be a reasonable belief that the employee had committed
the offence of which he or she was accused. They would not even need a
presumption of guilt, just a reasonable belief.
I do not know whether you were
in here earlier for Lady Justice Smith’s
evidence—
Dr.
Meldrum:
I am afraid that we missed
most of that.
Q
125
Richard
Burden:
Well, would I be right that a balance of
probabilities standard of proof is actually of itself quite a high
standard of proof, or do I have that one
wrong?
Dr.
Meldrum:
It does not seem to be as high a standard of
proof as the one that exists at present. It is not really for me to try
to justify what might or might not happen in other employment areas,
but if you are saying that employees can lose their livelihood on a
much lesser standard than the balance of probabilities, then that seems
to me grossly unfair.
Q
126
Mr.
Crabb:
Dr. Meldrum, you say that you are not here to talk
about other areas of employment, but perhaps there could be something
about other areas of health care professions. Our Committee was told
that most other health professions use the civil standard of proof.
What makes medicine so different?
Dr.
Meldrum:
I think Sir Graeme Catto referred to this,
but there seems to be quite a lack of evidence around the whole
regulatory system process, wherever you work. We would want to see
evidence that such a change is actually going to make a great deal of
difference. I think that the GMC has admitted that, at the higher end
of the scale, this might not make much difference at all. We obviously
welcome that. Now, if it is genuinely part of a supportive, helpful
system at the lower end—rather than a punishing system, as many
doctors see it—we will be prepared to look at that, but we need
to see the evidence for it.
I do not think that we are
trying to say that doctors are in some way special and should be
different from everybody else. However, we have a system at the moment
that uses the criminal standard and we have not really seen much
evidence of why a change is needed for doctors. Again, I have to let
other professions speak for
themselves.
5.30
pm
Q
127
Mr.
Crabb:
Dr. Buckman, could I follow up on one comment that
you made about potential changes in the way that a doctor might behave
if there is a move to a civil standard of proof? Again, looking
sideways at other health professions, have those fears been borne out
in other professions where they use a civil standard of
proof?
Dr.
Buckman:
I cannot speak for other professions. I do
not know. The difficulty for the medical profession is that we have
greater opportunity than other professions to practise defensively in a
way that might put those we look after at greater risk. I am not
suggesting that we would risk patients’ lives, but doctors could
feel threatened. It does not matter if I am a good or a bad
doctor—in fact good doctors are likely to feel more threatened
than bad ones, because generally bad doctors do not know that they are
bad, whereas the rest of us are scared stiff that we might be. Doctors
will practise defensively and be more careful and cautious out of
fear—be it real or unreal—that somebody will ask them
difficult questions, so they will tend to do more. Doctors have a
greater opportunity to do that than many other health care
professionals, because of the level of seniority and the opportunities
to do things that many other health care professionals do not have in
quite the same
way.
Q
128
Lord
Commissioner of Her Majesty's Treasury (Steve McCabe):
I
am trying to understand something. I might have missed the point here:
you said that
doctors will be more careful and cautious. What is the opposite of that?
Would they be cavalier and less cautious? What is it that you are
currently doing that will change if you are to become more careful and
cautious? How are you operating
currently?
Dr.
Buckman:
I operate in the best interests of my
patients.
Q
129
Steve
McCabe:
And being more careful and cautious would not be
in the best interests of your patients? I am struggling to
understand.
Dr.
Buckman:
I shall give you a very simple example. The
vast majority of patients who come to me with a headache do not have a
brain tumour or a serious brain disease. They might have a variety of
illnesses, but serious brain disease would be very low on that list. In
future, if I think that I might be taken to the GMC because I failed to
investigate a headache, I will be referring people for CT scans. Forget
the cost—let us assume that they are free. It is inappropriate
to irradiate people for a disease that they do not have because you are
scared that somebody will be worried about it. No one will scan
everybody, but there is no doubt that some people will be submitted to
investigations—not wildly ridiculous ones, but ones that
probably would not be indicated—because the doctor is playing
more carefully. We will see more blood tests and so on, none of which
is done to punish the patient but to be extra careful. You go to your
doctor for good clinical advice and expect him to provide the best
possible service, not to be over cautious, which results in unnecessary
measures for the patients. That is what I am talking
about.
Q
130
Laura
Moffatt:
May we continue this point, because I, like
Mr. McCabe, am intrigued? I doubt that any of the cases that
we know about, in which doctors have sadly run into trouble, were about
over-investigation; they were about a cavalier attitude and not
investigating properly. For me, that is where the risk lies. Did
Steve’s question not touch on the real problem, which is quite
the reverse of what you are
saying?
Dr.
Buckman:
That is precisely what I said about
behaviour. Doctors who practise good medicine will feel that someone is
looking over their shoulder all of the time. Doctors who do not do
things right will continue to do so. I am not here to defend them. If
the GMC is going to sort them out, it is perfectly okay with me. I am
talking about the vast majority of doctors who practise careful
medicine, who do the right thing and who will perceive that lowering
the standard of proof will mean that they will have to be more careful.
That will subject patients to a higher degree of
investigation.
Q
131
Stephen
Hesford (Wirral, West) (Lab): If I may say so, I am
frankly worried, Dr. Buckman, that you seem to personalise your
answers—“I was doing that”, and “I was
doing this”. Can you furnish the Committee with survey evidence
that would persuade us, if we were persuadable, that your colleagues
have told you, in huge numbers, that they have this fear about
defensive medicine? Personally, I am not convinced that you represent
what you colleagues would really be saying.
Dr.
Buckman:
No, I cannot present you with such
evidence.
Stephen
Hesford:
You have given your personal view, which is
useful to some extent, but I am talking about the rest of the
profession.
Dr.
Meldrum:
What we could provide as evidence is the
more general view about the changes in the standard of proof and the
fairly overwhelming view, both in surveys and through confidence
motions, that they are opposed to such a
change.
Stephen
Hesford:
I understand the opposition, but that was not my
point. I was talking about defensive
medicine.
Q
132
Judy
Mallaber (Amber Valley) (Lab): I, too, am very puzzled by
this attitude. My worst case in recent years concerned a child in my
constituency who died of meningitis. There was a great cry for a full
local inquiry, and a number of changes in practice took place in both
the ambulance service and the children’s hospital. How would you
explain to my constituents whose child died why the signs of meningitis
that they thought were there were not investigated—we are
talking about a good competent doctor here? How could you justify the
idea about a more defensive attitude when that defensive attitude might
have ensured that that child was investigated? Those are the sorts of
cases that you will have to answer. You will have to explain to my
constituents, and others in similar situations, why you do not believe
that it is reasonable to have this burden of standard of
proof.
Dr.
Buckman:
I am not trying to defend
inappropriate or unfortunate behaviour. In cases in which there is
sufficient doubt about a diagnosis, the doctor has to investigate as
far as they think appropriate. It is easy to say afterwards, when
someone has been damaged, that they should have done
something.
The
difference is that in cases in which doctors do not need to do these
things—and it is always a grey area—they will have to
make a judgment on whether or not they proceed with an investigation.
If there is any doubt about someone’s illness, clearly the
doctor will proceed with the investigation. My point was that there
will be the temptation to investigate more than there would have been
otherwise. I am not talking about not investigating a kid with
meningitis. Clearly, there is no argument. That case should be
investigated fully and appropriately. It is in cases in which you do
not think that someone has
meningitis.
Q
133
Judy
Mallaber:
It still does not fully explain why the standard
of proof for doctors should be different from that of other employees.
I still do not understand exactly what makes you special.
Dr.
Meldrum:
I do not think that we are trying to claim
that we are special. I have tried to make that point quite clearly.
Taking away one’s livelihood—that, in effect, is what
losing your licence to practise means—on the balance of
probabilities is likely to lead to more unfairness and a change from
the present system. I am not here to answer for other employees or
other parties. I would like to see the evidence base that such a move
is going to improve things for the patients.
I mentioned at the beginning that for a system of regulation to work
effectively it must have the confidence of those it is regulating. The
vast majority of doctors get up in the morning determined to do the
best job that they can. If they feel that they and their colleagues
could be subject to a system that they perceive to be unfair—and
we can discuss whether that is a valid perception or not—that is
not going to be helpful to
patients.
The
Chairman:
I am conscious that we have other areas to
cover, and two other members of the Committee want to come
in.
Q
134
Angela
Browning:
I do not know whether I am in order here,
but would it be helpful if the BMA or the GMC provided the Committee
with recent statistics about the nature of the inquiries that doctors
have been subjected to in disciplinary matters? I am beginning to find
this a rather bizarre conversation. I would be interested to know how
many patients have taken action against doctors for things such as
over-exposure to scans. The Committee needs to consider the
classifications of complaints against doctors and the outcomes of those
different classifications. Before we consider the Bill line by line, I
as a Committee member would find that information very helpful,
wherever it comes from, so that we can focus on what, in the main,
doctors are being asked to account for and the outcome of disciplinary
action against them for those types of
complaint.
The
Chairman:
We must not discuss the merits of the Bill just
yet, but obviously if the witnesses want to comment on that, they can.
If there is evidence that you wish to give, not necessarily now but
subsequently—
Dr.
Meldrum:
We can look at
that.
Q
135
Kelvin
Hopkins:
I just wish to pursue the point, if I may. I
shall paint a scenario that is not so distant in reality. An elderly,
single-hander GP in a poor inner-city area, who does not have a high
reputation with the primary care trust, will not retire and has a long
list because the more patients they took, the more money they received.
They have a lack of confidence in their own ability and therefore refer
a very large number of patients to the hospital, which upsets the
hospital. The logical thing to do in those circumstances would be to
persuade that elderly doctor to retire, yet because of the shortage of
GPs, particularly in unpopular areas, they do not retire. Of course,
they have many of the type of patients who do not complain, because
they do not have the skills that some of us here might have to make
complaints. What would you recommend for dealing with that situation,
other than what is proposed in the
Bill?
Dr.
Meldrum:
It might take quite a long time to go
through all the things, but I am as eager as you that we resolve that
situation. I am certainly aware of the type of practice and doctor in
inner cities to which you refer. There is a long legacy of
under-investment in and a lack of support for such people.
The BMA is being portrayed as
anti-everything that is in the Bill. We are not; we welcome a lot of
things in the Bill. We first suggested a system of re-accreditation
back in the early 1990s, so we are thoroughly in favour of
re-accreditation, revalidation, re-licensing, appraisal of doctors,
more support for doctors and the National Clinical Assessment Service
to help retrain and support doctors. We are certainly
in favour of not allowing doctors who are isolated and clinically
detached not to be properly supported, and in some instances they must
be encouraged. If they cannot be encouraged, they may have to have
their fitness to practise taken away. We are not arguing against
certain doctors losing their right to practise, we are questioning the
mechanism for deciding who those doctors are and whether it is fair and
appropriate and the profession perceives it as being so. I could talk a
lot more about how we support inner-city practice, but that gives you a
flavour.
Q
136
Sandra
Gidley:
Is it not the reality that most doctors will carry
on practising in pretty much the same way, because the difference is
going to be very small? If GPs suddenly started referring people for a
lot of tests, the referrals committee at the local PCT would be on to
them like a
shot.
Dr.
Buckman:
Ultimately, doctors would say that they were
being more careful, because they felt that they should be. Nobody would
do a test that they could not justify somehow, so I think that that is
what would happen. The number of referred matters would go up. We can
argue about whether that is a good or bad thing, but it is probably
what would happen. That reflects they way that practice would go, and I
advance that case to the Committee because I believe—I am sorry,
the BMA believes—that we should raise it and bring it to your
attention. But do I believe that people would behave hugely
differently? No, at first they would not. They would start to feel more
defensive, and that is the concern that we are trying to
avoid.
Q
137
Sandra
Gidley:
Dr. Meldrum, you mentioned that there should be an
evidence base for changing. Is it not also up to the BMA to provide
some sort of evidence base for staying as you are? Is there any
evidence from other countries that have changed the system that there
has been any change in
practice?
Dr.
Meldrum:
Not a lot of evidence, as far as we have
been able to ascertain. I accept that a lot will depend on how any
system is seen to operate. We have discussed sliding scales, which I do
not like for many practical and philosophical reasons, but unless there
is clear and cogent evidence—and the more severe the case, the
more clear and cogent the evidence must be—the
profession will perceive it to be an unfair system. Part of the problem
is that there is not much evidence. When there is not much evidence, I
would stick with the status quo rather than make a change for
change’s sake.
5.45
pm
Q
138
Sandra
Gidley:
You mentioned the sliding scale, and Dr. Buckman
seemed to intimate earlier that on an alleged offence, the committee
might think you needed 60 per cent. probability, but the evidence would
emerge and you would have to change it. I do not think that it would be
like that; we must trust the people’s
judgment, as the case develops, about whether more or less evidence is
needed to make an ultimate sanction. Let us say you lost the case for a
change in the standard of proof, is there anything that you would like
the Bill to firm up—on the lines of a sliding scale or some
such?
Dr.
Meldrum:
I am not keen on the sliding scale, but I am
a pragmatist and a realist. If we lose, as I suspect we might, I want
not only proper training for those who sit on panels, but the training
to include how one operates, to ensure there is clear and cogent
evidence—not hearsay or one person’s opinion against
another’s—to convince people that what was alleged
actually happened. Let us move away from the standard of proof. There
should be clear and cogent evidence that that doctor has significant
failings that would invite one to take away their right to
practice.
Q
139
Sandra
Gidley:
Is it just about the training of the panels, or
does something more need to be written in stone?
Dr.
Meldrum:
It is quite difficult to put into words how
you operate a system, but perhaps we could include in the Bill a review
period, if there were a change to the civil standards, so that we could
look at how the changed system was operating. We could try to obtain
more evidence and consider whether it was doing what people hoped and
intended it should do.
Dr.
Buckman:
No.
Q
141
Kelvin
Hopkins:
Indeed. Do you agree with the creation of a
separate body—perhaps the OHPA—to oversee fitness for
practice proceedings? What is wrong with the way the GMC has performed
its role to date?
Dr.
Meldrum:
Strangely enough, the profession has been
fairly ambivalent about this one. Comments range from, “No,
let’s take the status quo,” to, “Well, we
couldn’t be any worse off than we are now, therefore anything
would be better than the present system.” I am conscious that
the president of the GMC is sitting behind me—sorry, Graeme.
Much of our uncertainty has been about the composition and operation of
any new body, and we have always said that whether the body is part of
the GMC or not, the profession must perceive it to be reasonably fair
and independent. If it is to be separate from the GMC, that
independence should be from both the GMC and the Government in order to
secure doctors’ confidence in how it
operates.
Q
142
Kelvin
Hopkins:
Your GMC colleagues emphasised earlier that they
are part of an entirely separate organisation and that you are
effectively a trade union. I am trying to phrase this carefully: you
are quite friendly with each other, shall we say? You are not hostile
to each other.
Dr.
Meldrum:
On a personal basis, I
hope I am friendly with almost everybody I come across. I am sure that,
were Sir Graeme Catto able to say so, he would
testify that he has always been warmly acclaimed at BMA conferences. The
GMC has, too. There has been a feeling over recent years that not only
has the GMC got it wrong in terms of the public, but also in terms of
the profession. That may be quite unfair, and I appreciate the
difficult job it has and the difficult role it has to follow, but at
the moment the confidence of the profession in the GMC is not what I
would call high. I am not blaming the GMC for that, and a lot of it has
not been of its making—it has been high-profile cases that have
been seen to go in a way that the profession has felt has not been
correct. Of course, on a personal basis we speak regularly to the GMC,
but to suggest that the BMA and the GMC are cosy bed fellows would be
stretching the truth rather far.
Dr.
Meldrum:
I am less careful about
that.
Q
144
Kelvin
Hopkins:
There has been a lot of talk of perception this
afternoon. The perception is that you are in the medical field, that
the Government are clearly not in the medical field, and that there is
the independent world representing the public, which is again entirely
separate. What is being proposed is seen as a move away from the
medical world, with some people unhappy about the fact that it is
moving towards Government and there is Government involvement. Would it
not improve perceptions if there was a higher degree of
independence?
Dr.
Meldrum:
It depends whose perception you are talking
about. I think that if the body is independent both
of Government and the GMC, there may well be that perception. I said at
the beginning that the profession would want very much to see the
proposed structure and operation of the independent body. We have some
idea within the Bill, although there are some problems with that in
that some of the links with Government, which Sir Graeme and Findlay
referred to, are perhaps still too strong. There are certainly concerns
about how such a body would be funded, following experiences with, for
instance, the Postgraduate Medical Education and Training Board, which
oversees medical training. The profession feels that it has almost had
a licence to set its own agenda and its own fees without any check or
hindrance, so there would be concerns about that. In terms of seeing a
degree of independence, within the whole context of what the profession
still believes is important to professionally-led regulation, and
therefore a profession in some way having responsibility for its
members and those it represents, I think that an independent body would
be looked on quite favourably by the
profession.
Q
145
Mr.
Bradshaw:
What pressure have you put on the GMC on the
issue of more independence from
Government?
Dr.
Meldrum:
What pressure have we put on the
GMC?
Q
146
Mr.
Bradshaw:
You acknowledged in your comments that you have
a political problem with your membership because it wants the body to
be independent. If it is to be independent from the medical
profession—
Dr.
Meldrum:
Are you talking about
OHPA?
Q
147
Mr.
Bradshaw:
The independent adjudicator, yes. If it was to
be independent from the medical profession, the quid quo pro, as you
implied, was that it should be completely independent from Government.
I am asking what discussions or pressure you have put on the GMC in
that
regard.
Dr.
Meldrum:
I do not think that we
have put any pressure on the GMC. I do not think that I quite said that
it would be independent from the profession; I said independent of the
GMC and independent from Government.
Q
148
Mr.
Bradshaw:
So you had no discussions with the GMC through
Laurence Buckman’s official role as your link-person over the
issue of independence from
Government?
Dr.
Meldrum:
The issue of the new body has been
discussed; it would be untrue to say that it has never been discussed.
To some extent we would share the GMC’s view about the potential
for this body to be seen to be too closely associated with Government,
but we have not put pressure on the GMC on that opinion. We would share
their view on that point.
Q
149
Mr.
O'Brien:
We have six minutes or so left to get back to the
delicious subject of responsible officers. You have made
representations that the responsible officer function should be
separate from the employment one, as regulation has to be independent
of the employer if it is to retain professional confidence and
credibility. It would be helpful, as we have been desperately trying to
understand the matter during previous hearings, to know how you believe
it will work in practice. If that is different from what you think
would be ideal, we should like to know about that difference as
well.
Dr.
Meldrum:
I shall try to be brief.
We feel, as I think you feel, that some of it is perhaps a little
unclear. What we have concerns about—some of those concerns were
expressed earlier—is that if there is not that degree of
separation of function, there will be quite considerable conflicts of
interest about whose behalf the responsible officer is working on. To
come up in five minutes with an exact plan for how we believe
responsible officers should operate would obviously be impossible, but
we can certainly try to furnish you with more details.
It comes back to the whole
business of having confidence. We are aware of people—medical
directors in trusts, or whoever—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.
Q
150
Mr.
O'Brien:
Do you feel that having a responsible officer who
is also the medical director, for instance, might give you that
problem?
Dr.
Meldrum:
It certainly gives the
potential for that problem. I think that the vast majority of my
colleagues who are medical directors would try to carry out that
function to the best of their abilities and to be cognizant of the
conflicts of interest, but there are some who will be under
considerable pressure from their employers to act in certain ways. How
we achieve the system will help to find that out and prevent it, so
that we do not get patronage or personalities coming into it. A lot of
it will be in the overall governance of the system—trying to
ensure that such things do not
happen.
Q
151
Mr.
O'Brien:
In the previous hearing with the GMC, we raised a
point about training. I am glad that came out, because I think that we
shall have to pursue it. Although the GMC did not say so in their
evidence, I got the impression that what lay behind their discussion
was that there is a degree to which there is merit in having a medical
director who is also the responsible officer, because they have the
credibility of somebody who understands what it is like to practice
medicine, and who is therefore a peer. That can help when it comes to
making a judgment about somebody’s ability and so
forth.
Dr.
Meldrum:
There is a huge overlap in function, too.
When revalidation comes in, and as appraisal has come in, a lot of the
information that people will be using to make those judgments will be
information that they rightly have as medical
director.
The
Chairman:
That is the end of our formal questions. We have
a couple of minutes left if there is anything that you wish to say to
the Committee before we conclude the session. You do not have
to.
Dr.
Meldrum:
Obviously, we have concentrated very much on
the standard of proof. I reiterate what I said at the beginning: we
welcome a lot of the direction of travel. We want to weed out
incompetent, poorly performing doctors, but we want to do so as much as
possible in a climate of support and rehabilitation, because we do not
believe that most doctors set out to be bad doctors; there are often
circumstances that perhaps make it easier for them to be less than
adequately performing doctors. We want to try to continue a move
towards more local resolution and more support for doctors, at the same
time coming down very hard on those few doctors who are not only
performing poorly but are not amenable to or will not co-operate with
remediation. We feel that that is the best way to protect
patients.
I return to
my earlier comment. A system that has the confidence of the profession
is much more likely to encourage doctors to be honest about faults in
themselves and colleagues. In my experience, that has always been the
most common way that problems with doctors come about. We have heard
about cases—Sir Graeme alluded to them—in which, after
the case comes out, lots of people come out of the woodwork to say,
“We knew for ages that he wasn’t a very good man.”
We want a system that makes such people come forward at the beginning,
which is why we want a system that has the confidence of the
profession.
6pm
The
Chairman:
Thank you very for coming before the Committee
and for the robustness of your
replies.
Will the
representatives from Which? take their place? If the witnesses
are comfortable, we shall
proceed. Thank you for coming to see us this afternoon. For the record,
will you introduce yourselves to the
Committee?
Helen
McCallum:
Thank you very much for inviting us.
I am Helen McCallum, the director of policy at Which? I am sure that
members of the Committee will know that that is an independent charity
supported by 670,000 members. It has been campaigning and researching
over a number of years in the area of patient-focused health
care.
Frances
Blunden:
I am Frances Blunden, principal policy
adviser working on health issues. I have had a long-standing
involvement pre-dating my Which? employment in regulatory issues. We
are concerned about regulation delivering better health care rather
than regulation for its own
purpose.
Q
152
Mr.
Crabb:
I shall start with a general
question. Is it your view that the new integrated care quality
commission as set out under the Bill will help to drive up the quality
of health and social care services in the United
Kingdom?
Helen
McCallum:
Yes, it is. Which? is
very supportive of a merged health and social care regulator. From the
perspective of the user or patient, the mystery of the boundaries
between health and social care has certainly been confusing for people.
We think that it will provide a real opportunity to drive a more
patient-focused approach, but we should like to see two things to
strengthen that. We feel that it is an omission that the Bill does not
set out clearly a distinct purpose for the body, which articulates its
role as being primarily for the protection of patients. I do not know
whether you would agree, but I am not certain that clause 2(5) cuts the
mustard in terms of intelligibility to the average lay person. We would
like to see something more along the lines of the Food Standards
Agency, which has a very clear statement of purpose. It allows for the
lay person to understand what the body is for. It allows the focus of
the body to be clear to everyone and it allows for a revaluation of
whether the body has, in fact, met the functions that it has been
required to meet. That is one thing that we would like to
see.
Associated
with that is the fact that we would like to strengthen the Bill in
terms of a duty to take on board and listen to the views of patients
and service users. At the moment, the Bill states that the CQC will
“have regard to” the views of the public. We are not sure
that that is specific enough. Our research has shown that patients and
service users have a number of issues that, for a variety of reasons,
they are reluctant, unwilling or feel unable to raise. It is there that
the real signals of what might be going wrong with the system are to be
found. We would like the Bill to strengthen that for the
CQC.
Q
153
Mr.
O'Brien:
Following that answer and having looked at your
submission, we can see that you are calling for a duty on the care
quality commission to consult patients. It would appear that that has
arisen as a result of the changes in the Commission for Health
Improvement and ultimately the community health
councils, which were an avenue for such a voice. I do not know whether
you feel that that therefore sits as a logical step in restoring some
of that independent voice and the listening process. In order to meet
that need, what would you do to amend the legislation in light of last
year’s Local Government and Public Involvement in Health Act,
which clearly intended to go some way down that track? From what you
have said, I get the impression that you would like us to try and do a
bit more.
Helen
McCallum:
Obviously I do not want a draft here, but
we would like the wording to be changed from “have regard
to” to “have a duty to consult with patients and users of
services”. The duty being part of the change in that patients
and users, as distinct from the general public, would be part of the
point. Those are the two changes that we would like to
see.
Q
154
Mr.
O'Brien:
I take it that your reading of the Bill
included the schedules, where some of the duties are laid out albeit in
a somewhat short form—but that is a matter for us to deal with
at a later point. You are looking for a more expansive and persuasive
whole approach to the range of duties, is that right?
Helen
McCallum:
That is exactly right. And to bring it in
line with other bodies who have a duty to consult.
Q
155
Mr.
O'Brien:
I am pleased to see that you are calling for the
CQC to have explicit responsibility for monitoring hospital food
issues—you will be aware that I have been exercised about this
over the past few days. The Government’s dignity in care agenda,
as you know, focuses in part on malnutrition issues and it would be
helpful for us to understand the degree to which that as an initiative,
not a legislative approach, is not necessarily delivering in the terms
that you wanted. How could you see this measure being able to deal with
that, and helping to underpin a more deliverable approach to a concern
that is widely shared across the House—I do not seek to make any
kind of partisan point here.
Helen
McCallum:
Which? believes that nutrition and hospital
food and social care services are as fundamental as cleanliness to the
delivery of patient progress care. We are delighted to see that the
Bill addresses those issues, and there is clearly a significant need to
address those matters of cleanliness. The service that we have, has
shown that patients and service users are concerned about the standard
of food that they receive. That is not a question of whether or not
they like it, but is about the nature of the food with respect to
certain medical conditions and the extent to which people actually
receive the food as it arrives. It seems to us to be another potential
scandal waiting to happen, in the same sense that there has been a real
consumer detriment around issues of inefficiency and cleanliness. We
think that this issue is just as important, and it should therefore be
stated as a responsibility of the regulator.
Frances
Blunden:
To add a bit of colour to what Helen has
said, in an article for Which? magazine in 2006, we had one
member who had spent four weeks in hospital. He had a broken jaw and
should have been on a liquid diet, but most of the time when food came
to him, it was not in an appropriate form. Yesterday,
Gordon Brown said that the NHS should focus as much on prevention as
cure, and in that context, nutrition should be focused upon as
something that helps people to get better. If someone spends four weeks
not being able to eat, they will not be in a very good state
afterwards.
Q
156
Greg
Mulholland:
You have already mentioned the issue of
cleanliness, and you are well aware that one of the public’s
biggest concerns is that of healthcare-associated infections. Can I pin
you down and ask you whether you think that the new powers given to the
new commission will tackle those infections in a meaningful and
successful way?
Helen
McCallum:
Yes, I think that on the whole we do. It
returns to my point about triggers with regard to the
regulator’s listening capability in receiving intelligence from
patients and service users, who are often concerned about cleanliness
as well as food and a variety of other issues about the organisation of
care. Our research has shown that a significant number of those do not
at the moment feel able to make the right representations in the right
place. The powers are adequate, but we should ensure that the
intelligence comes to the regulator in the most effective way. The best
way to do that is for the regulator to have a duty and responsibility
to enable people to “indicate” that there is a
problem.
Frances
Blunden:
In this context, we can look
to practical examples provided, for instance by Maidstone Tunbridge
Wells. It was a year before the Healthcare Commission report came out
and one presumes that there was a long lead-up time to the commission
going in. Research that we did for the consultation on complaints
reform last year shows that fewer than one in three people who felt
that they had some cause for complaint actually made a complaint, so it
is important to learn to listen and to find ways in which to get
information into the system and trigger things
quicker.
Q
157
Greg
Mulholland:
So do you think that it is to do with the
system rather than the new powers specifically? We were interested to
hear earlier from the Healthcare Commission, which said that it felt
that new powers were not necessary and that it had not asked for them.
Do you think that it is not so much to do with new powers as with the
system? Do you think that the new body—the new
commission—will be
helpful?
Helen
McCallum:
Yes. We believe that the
issue is not so much the powers, but the means of indicating that there
is a problem. The issue is the upward feedback from the local source,
which is why the regulator will need very strong mechanisms by which to
listen to patients and service users in addition to satisfying,
obviously, the thoughts and needs of the general
public.
Frances
Blunden:
That said, it is no good finding things out
if nothing is done about them. Ultimately, people want the issues they
raise to be sorted out. Certainly, through our impatient for change
campaign, we highlighted the good focus on sorting out hospital
trusts’ financial problems in the past few years. We would like
the same kind of focus on the quality of experience, particularly on
cleanliness. However, closing down a local hospital or even a local
ward is not necessarily the solution because it might leave local
people without an alternative—fines on services could,
potentially, end up penalising other service users. There needs to be a
more sophisticated consideration of what penalties and sanctions are
available to ensure that standards are met and that they are of a high
quality.
Q
158
Greg
Mulholland:
Do you think that a care home secretary
will be sufficiently involved? Everyone talks about hospital-based
infections but, actually, there has been a lot more exposure to care
home-based
infections.
Helen
McCallum:
We are tending to answer on the basis of
health care because our most recent research has been into users of
health care services rather than social care services. However, the
same thing applies—we are concerned that there is sufficient
root for indicators to trigger action in the
regulator.
Q
159
Mr.
Bradshaw:
To play devil’s advocate on the duty
issue, the Healthcare Commission would say that most if not all of its
recent major inquiries resulted from patient complaints—I am
thinking of Cornwall, Stoke Mandeville, and Maidstone Tunbridge
Wells—or from patient complaints and a combination of data. Is
there a danger that by placing a duty on the commission, you could
create capacity issues for the regulator that might mean that it is
less alert to any patterns of problems that emerge. Such patterns have
spurred its inquiries to
date.
Frances
Blunden:
If you don’t find
out about an individual case, you will not find the patterns.
Identifying individual situations will feed up into those patterns. I
do not see how you could do one without the other.
Helen
McCallum:
The duty would help to
give confidence in the new regulator that consumers and patients were
genuinely being listened to. It would also, in some sense, create
systematic feedback as well as a reliance on patients themselves to
have the confidence to make a complaint. Our research shows that at
least one third of those who wish to make a complaint, or feel that
they have grounds for making one, do not in fact do
so.
6.15
pm
Frances
Blunden:
It has a number of initiatives, and the
indications from CSCI is that it is trying to listen to patients.
However, when you create a new body, it is important that it is given
those duties at the outset. This is the third major reorganisation of
heath and social care regulation since 2000. It would be really good to
get it right. It would be good, I am sure, for the providers and the
regulators. It would certainly be good for the public to know who to go
to, if they have concerns, and who they can trust to set
standards.
Q
161
Angela
Browning:
Is not one of the difficulties with
individuals making complaints—I am thinking
particularly of those who have had a hospital stay—that a large
percentage of the hospital population is elderly
and many have nobody to articulate their problems on their behalf? Some
of the most serious problems concern the care of the elderly. The fact
that one third of people do not report their problems very often is
because they cannot articulate them, owing to their age, frailty,
illness or whatever. It might simply be that no one comes in to see
them who is alert enough to make representations on their behalf. Do
you think that we need to do more in caring for the elderly in
hospitals and in care? What is your view on a commissioner for older
people?
Frances
Blunden:
Returning to our research on why people do
not complain, a large number did not do so because they did not feel
that it would make any difference—that accounted for more than
half of those who did not complain. Nearly half wanted to forget about
the experience and another 40 per cent. or so did not want to make a
fuss. Those surveyed could choose more than one answer—in case
your maths worked out that that added up to more than 100. For a
number, the process was too complicated or they did not know how to
make a formal complaint. However, of most concern—this is
reinforced by a report produced by the Healthcare Commission earlier
this year—about one third feared that it would jeopardise future
care. Those reasons need to be kept in mind. Importantly, we found no
such substantial differences, although that might be a result of
limitations in the survey results—80-year-olds were not
necessarily
interviewed.
We have
not talked about a commissioner for older people and it is not
something that we have necessarily thought about. Certainly our view is
that older people in hospital are very vulnerable, but actually even
younger people and your classic middle-class individual can end up
being very vulnerable in hospital as well. We need to think about how
needing health or social care can make anyone very vulnerable.
Discussions about focusing just on vulnerable adults can negate that.
We need to think about it much more
widely.
Q
162
Angela
Browning:
May I ask as a supplementary
whether you have considered end-of-life issues? I am not suggesting for
one minute that complaints about something that has caused the end of a
life might come forward. However, they will concern issues involving
the care of those nearing the end of their lives, whether they are in
hospital or moving to a nursing home. As MPs, we hear of such issues
almost on a daily basis. Do you feel that there is a need for more
consideration of that group of people and of the care of people nearing
the end of their lives, who would of course include mainly the
elderly?
Frances
Blunden:
We have not done any work on end-of-life
care. Other organisations in the voluntary sector are more focused on
that issue. Our focus tends to be more general. Certainly as part of
the impatient for change campaign, we have received a huge number of
poignant stories about, for example, carers’ experiences of
watching their loved ones die in absolutely degrading circumstances.
That was not happening 10 or 100 years ago but in the past
year.
Q
163
Anne
Milton:
I have just one point to make before I get on to
the health in pregnancy grant, which I would like to ask you about. The
fact that people do not complain because of a fear that it would
jeopardise
their care is an absolutely dreadful indictment of the service. I feel
that I need to put that on the record. I am sure that there are members
of the National Childbirth Trust sitting in the audience, and the same
would be true for maternity services. That is
terrible.
I would
appreciate your views on the health in pregnancy grant, and whether you
feel that a one-off payment will make a difference to the nutrition of
women who are expecting a
baby.
Frances
Blunden:
Again, that is something that we do not work
on or focus on. Other voluntary sector organisations are better placed
to do that. They are better connected to people who are in that
situation. We are not seen as the natural place for people to come with
their views on such subjects. What we very much try to do is to reflect
the experience of ordinary people using health and social care
services.
Q
164
Anne
Milton:
You have no expertise in
nutrition for pregnant women? Have you done any research on
it?
Frances
Blunden:
Not specifically around pregnant
women.
Q
165
Mr.
O'Brien:
May I try a different tack? Given that Which? is,
as I understand it, a consumer association, do you see patients as
consumers?
Frances
Blunden:
Personally, I think that
that debate is a bit narrow. We talk about consumers because we are a
consumer organisation. The people who come to us are using out-of-hours
services, NHS dentistry services, cosmetic treatment services or
hospital in-patient services. The language that we use for them is
around consumerism. How people describe
themselves—
Q
166
Mr.
O'Brien:
The debate is not intended in any way to be a
narrow one. The health in pregnancy grant will be a one-off financial
payment at a specific point in a woman’s pregnancy, with the
stated objective that she will be encouraged, even likely, to use the
money for the proclaimed purposes. Based on your expertise, experience
and understanding of how consumers behave, how do you react to it as a
consumer issue? How are people likely to receive the payment, and would
their behaviour be natural if the grant delivered on its stated
objective? Ultimately, fiscal policy has to work with the grain of
human behaviour rather than simply be an announcement from on high.
That is what I am trying to elicit from
you.
Frances
Blunden:
We have done a lot of work at
Which?—not me personally, because I work only on health issues,
but I have an experienced colleague who does a lot of work on food and
nutrition. The intuitive reaction is that a one-off pregnancy grant may
tackle the problem at that particular time, but to build good nutrition
for the future of the child, more needs to happen to ensure that all
children have access to good food, a good diet and plenty of exercise,
as Gordon Brown was saying
yesterday.
Q
167
Mr.
O'Brien:
Sorry, I wish to pursue that point further
because I am conscious of the expertise that Which?, as a research
organisation, has. If you were to
set out to establish evidence by which you could
determine whether such a grant is likely to have the behavioural effect
intended for it, how would you go about it? What evidence would you
gather to support
it?
Frances
Blunden:
Probably you would want to talk to our food
colleagues.
Helen
McCallum:
We would prefer that. Otherwise, we would
be offering you random personal thoughts, which is not quite what you
are
after.
Helen
McCallum:
Yes, I do. We can certainly supply you with
something once we have consulted some of our colleagues who have more
expertise in this particular area, if that would be acceptable to
you.
Helen
McCallum:
That might be more useful than something
that we could give you off the cuff
now.
Q
170
Angela
Browning:
I thought that I might just float this idea to
you. I am old enough to be of a generation that was provided with
horrible tasting orange juice to ensure that our vitamin C was high and
something even worse called cod liver oil. It was provided on the NHS,
and I used to bury mine in the garden whenever I got the
chance.
On using public
money to improve the nutrition of specific groups of people, such as
pregnant mothers, would delivery to consumers be more likely to be
guaranteed if the money were spent on providing supplements and so on
through midwives and GPs’ surgeries? Would that be a better use
of public money? Would it be more likely to be
delivered?
Frances
Blunden:
Again, that would very much be conjecture on
our part, but there is a general point to make. We live in a world very
different from 1950s
Britain.
Frances
Blunden:
The issues of the responsibility of
individuals, the right to make choices and so on are key to how people
expect to be able to live their lives. It is a fundamentally different
environment. But certainly we can take that back to our colleagues,
talk to them and send something to the Committee in the not-too-distant
future.
Q
173
Sandra
Gidley:
Yes, just very quickly. You welcomed the broad
definition of health care in clause 5(2) but seemed to be concerned
that it did cover some cosmetic procedures, which are becoming
increasingly popular. Would you like to elaborate on that a
little?
Frances
Blunden:
At the moment, the administration of dermal
fillers, including some that are semi-permanent and permanent, of Botox
injections and of such things as chemical peels do not come under the
Healthcare Commission’s remit. It is a rapidly growing market
and is likely to grow even more rapidly. The consequences of things
going wrong and not being done correctly are significant, and the
report that we published this week highlighted an industry that is, to
use a word that was used earlier, cavalier. Poor practices and rule
breaking are prevalent, and we have also found in our research that the
drive to make a sale—it is very much a private market—can
put consumer safety at risk.
The consequences of getting it
wrong can be significant, including long-term permanent harm, even in
apparently innocuous cosmetic treatments that, if you watch “10
Years Younger”, seem like a five-minute fix. In addition, with
changes in technology, some of the currently more invasive treatments
are moving towards the non-invasive spectrum. That is why we would like
an explicit reference to cosmetic treatments. We recognise that the
Department believes that the taxpayer should not pay for regulation in
that context, but actually the taxpayer often ends up paying if it goes
wrong, because the NHS often picks up the pieces. Providers pay a
registration fee that covers at least some, if not all, the costs of
regulation.
Frances
Blunden:
We argue that it needs to be slightly wider
than just surgery. It needs to include treatments, which would cover
some of the things that are not traditional knife-on-skin
surgery.
Q
175
Mr.
Bradshaw:
I would like to explore, although we probably
shall not do so in the course of the Bill, the justification for
expecting the taxpayer to pay for the policing of procedures that are
purely cosmetic and not available on the national health service. I
think that we are going to run out of
time.
Helen
McCallum:
It is certainly the case that an awful lot
of people who undertake such procedures think that they are regulated,
and are quite unaware that they are not protected in any sense. It is a
choice that people are increasingly taking. Our research shows that one
in five of the British adult population considers some form of cosmetic
treatment. It is potentially a growing problem. If we do not prevent it
now, it will cause significant detriment to consumers and significant
cost to the
NHS.
The
Chairman:
Sadly, we have come to the end of our allotted
time. If any witness intends to write to members of the Committee about
anything that has been discussed, they should do so in the next few
days because the evidence session will end this week and then we will
be into consideration of the Bill. So, there is not an awful lot of
time. Thank you for coming before us and for the helpfulness of your
replies.
6.30
pm
Thank you for
coming to meet members of the Committee. Will you introduce yourself
for the
record?
David
Rogers:
I am Councillor David Rogers. I chair the
Community Well Being Board of the Local Government Association, which
covers adult social care and the whole interface with health issues. On
my left is Anne Williams, who is the president of the Association of
Directors of Adult Social Services.
The
Chairman:
I remind the Committee that the clock is ticking
to a Division, so we must be fairly robust in our
questions.
Q
176
Anne
Milton:
Thank you. I will offer you a challenge. Your very
useful memorandum raises a number of issues that you feel should be
changed in the Bill. It would be useful if you could run through them
now.
David
Rogers:
I will set out three particular concerns that
we have, and Anne may then wish to add to them. We certainly want to
see a duty to co-operate and share information locally because that is
where service delivery happens and where mistakes are sometimes
regrettably made. Anything that can be done to prevent such a situation
arising is to be welcomed. The relationship that the new regulator
would have with service deliverers in local communities up and down the
country is very important from our perspective.
The second
major issue is about performance indicators. As I am sure that members
of this Committee are aware, a concordat has been entered into between
central Government and local government, which was agreed by the
Secretary of State Hazel Blears and Simon Milton on behalf of the Local
Government Association. It is all about co-operation in general and, in
particular, about a much smaller set of indicators—198 as
opposed to the previous figure of more than 1,000. Therefore, we do not
want to see any more specific indicators added to that
bundle.
The third
element is that public health powers relating to things or premises,
rather than to individuals, should remain with local authorities. We
feel that the proposal for that to go to JPs could cause unnecessary
delay in certain circumstances. We can elaborate on any of those should
you
wish.
Q
177
Anne
Milton:
To pick up one point on the public health powers.
The Health Protection Agency feels very comfortable about them and does
not think that there will be any
delays.
David
Rogers:
The example that we could quote to you was
here in Westminster in the Litvinenko case of the polonium poisoning.
There were 47 different premises that had to be examined, and 47
separate applications had to be made to magistrates in order to do
that. There could have been some delays that would have prevented those
premises reopening as quickly as they otherwise would have done. The
existing powers with local authorities would have been quicker than
that.
Anne
Williams:
Yes, I should like to make a
couple of points about the first point—the
duty to co-operate and share information. It comes from several
operational experiences. First, we want to avoid duplication between
the commission and local authorities’ powers over contract
monitoring and commissioning. There are concerns that people who want
to make complaints can fall through the net, and it is important with
the rising concerns about adult protection that we have robust local
systems whereby information is shared between all local agencies,
including what the commission, local authorities, the police and other
agencies know. The issue is about operating in a joined-up way and the
willingness to be open and share information. It goes both
ways.
Q
179
Anne
Milton:
Right, so your concern is that which is always a
concern of local authorities: partnership and working across the board.
Imagine that the Bill goes through as it is, what impact will it have
on local authorities?
Anne
Williams:
Practice is varied. In some
areas, there will be a great deal of information and co-operation, in
others less so. We want a clear message nationally, through the
legislation, making it absolutely clear that there is a duty to
co-operate and to share information.
David
Rogers:
There are examples in other fields where the
measures work very well. For instance, we could talk about the practice
with Ofsted in child care settings, whereby local authorities have
responsibility for food safety and hygiene, and Ofsted has
responsibility for inspection. Increasingly, locally, relevant
information is shared so that if one body becomes aware of
circumstances that relate more to another, the information is passed on
and the responsible body can take action. You might know about that
situation in particular, because councils in Surrey are trailing an
aide-mÃ(c)moire for Ofsted on that very issue so that there is good
practice in Surrey.
Anne
Williams:
Yes.
Q
182
Angela
Browning:
We heard evidence this morning from the three
individual regulatory bodies that will come together as one, and they
flagged up areas in which they have difficulty with
inspection—some of which can be read across into local
government. For example, when local authorities set the eligibility
levels for support, either elderly, learning disabled or whatever,
there are inevitably people below the threshold. The individuals
expressed concern about their inability to check whether there is a
problem with that group below the eligibility threshold. Equally, on
mental health, there was concern about their inability when they
inspect to access records and more detail about individual people in a
hospital or in residential care. Could you outline the problems with
practice, so that sharing, in terms of inspectorates, can be improved
in those areas?
Anne
Williams:
We are in
favour of one commission largely because so much provision is currently
integrated and more and more will be. The public do not care who
delivers services as long as they are of a good quality, flexible and
treat people with dignity and respect. The public want to be assured
that one body is responsible, and that it does not duplicate or focus
on different things. As the Bill outlines, there is much scope for the
reviews to be joint reviews of, say, provision for older
people—how people are treated with dignity and respect
throughout health and social care. There is much to be learned from
practice across the existing commissions, because some have had far
more involvement of users and carers in inspection processes than
others. In one way, there should not really be difficulties for, say,
the Mental Health Act Commission accessing records and information, but
obviously it has told you that there has been. I cannot comment in any
detail on that, because it is able to interview people and
staff.
Eligibility
levels are difficult, and that is a concern to us as an association and
to the LGA, because we do not want to be in a position where people do
not get the services they clearly need at a lower level. That is why we
are pleased that the reform grant has now been published around early
intervention, but there is an awful lot more that can be brought to
bear on that. As we integrate more and more, it is also about seeing
the public money that is available locally to narrow some of these
gaps, and to use wider local authority services through
neighbourhoods—culture, leisure, and housing
particularly—for early
intervention.
David
Rogers:
To add to that, the wider picture is of
enormous demographic challenges; in 20 years’ time, 20 per cent
of the population will be over 65 and, therefore, whatever the
situation is now, there will be greater demands then. Of course, that
is already true in some less urban parts of the country. The number of
children with disabilities has risen by 62 per cent over the past 25
years, we know that there are good reasons for that. It shows that, in
relation to eligibility criteria, the challenges that individual local
authorities are facing, especially at this time of the year, as they
come to setting their budgets, are very severe
indeed.
Q
183
Kelvin
Hopkins:
We have heard concerns that the new commission
will be dominated by health care responsibilities, and may neglect
social care. What changes to the Bill would help to prevent that from
happening?
David
Rogers:
Anne as a practitioner will be able to add to
this, but the principle is that services are increasingly being
provided jointly or in an integrated way at local level, therefore,
whatever the regulatory framework is, it needs to reflect that. That is
good for the individuals concerned, because sometimes it is hard to
discern where social care ends and health care begins, and vice versa.
That is something that we are entirely comfortable with, and it is also
why we support the integration of regulation, but the practicalities of
it need to ensure that it works, is effective and has the right balance
between regulation, which is of course necessary, but without spending
too much on it at the expense of those front-line
services.
Q
184
Mr.
Bradshaw:
I am interested to know why you feel comfortable
with it and you do not feel that there is a risk of the social care
side being overwhelmed by the health care side, whereas the current
CSCI expressed a very different view. Why might that
be?
Anne
Williams:
As the Association of Directors of Adult
Social Services, clearly we have a huge investment in
making sure that there is detailed attention to the quality and
regulation of social care. As we have said, the way forward is
integration, and we have to make sure that the commission works in an
integrated way. That is going to be the key. In local government, we
have as much investment in making sure that health services are of high
quality and people are treated with dignity as we have in social care,
because we are dealing with these people and they are crossing between
health and social care all the time. It will be down to who is
appointed as the commissioners, and their background, who the staff are
and having a true, joined-up approach to the reviews. We already have
some joined-up performance indicators; as time goes on and practice
emerges, we would like to see more—within the overall basket of
198 indicators—that really focus on the integrated nature of
what we are trying to do.
6.45
pm
Q
185
Mr.
O'Brien:
On a point of clarification,
arising in parallel with the Minister’s question, when you say
that you are much in favour and that integration is the way forward,
are you talking about the regulatory system or about the whole of
health and social care provision becoming integrated? In which case,
are we in danger of letting regulatory frameworks and processes get way
ahead of where we are in the delivery of services on the ground, given
the very sharp divide between what you, as local government
organisations, can offer versus what the NHS offers in terms of health
care—and, of course, given the massive difference between the
central taxpayer-funded NHS versus local government, local
taxpayer-funded social services? I just wonder whether you are getting
ahead of yourselves.
Anne
Williams:
In terms of
our vision and aspirations?
Q
186
Mr.
O'Brien:
The vision being to deliver a regulatory
unity while, at the same time, not having a unity of approach delivered
on the ground.
David
Rogers:
So much of this is already happening
in practice on the ground—and increasingly, through local
strategic partnerships, local area agreements and, in future,
multi-area agreements. Local authorities are working with PCT partners
to deliver increasingly joint services; therefore we feel that the time
is right for regulation to be brought together in that
way.
Q
187
Mr.
O'Brien:
Is that in addition to the
individual personal budgets that have already been announced?
David
Rogers:
Yes, although you are of course right to say
that the funding frameworks are different, as are the eligibility
criteria and all that sort of thing.
Q
188
Kelvin
Hopkins:
I think you were saying earlier
what I think about the distinction between social care and health care
being, in reality, difficult to make. In fact, the Government make that
distinction for charging and funding purposes. If that was overcome,
and there
were no charging, would that distinction cease to be so significant, and
would we have a much easier problem to deal
with?
Anne
Williams:
The association I represent—I am
answering as president of ADASS—has never argued for free
personal care, because of the financial consequences. But you are quite
right that it causes problems at the front line because of the wavy
line, if you like, between health and social care—and, often,
continuing care. That should be no reason not to be able to integrate
as much as we can. I would agree with Councillor Rogers that an awful
lot is happening on integration, which is moving apace. There is not
such a sharp distinction as there once was, and we are working hard to
see it as a whole
system.
David
Rogers:
I do not think that we are saying that, but
we are engaging vigorously with the debate that Ivan Lewis is holding
on all of these matters and the future of funding—
Anne
Williams:
And the Green
Paper.
David
Rogers:
And the anticipated Green Paper. We very much
want to be part of that debate, but we are not quite there
yet.
Q
190
Mr.
Crabb:
A few moments ago, you touched on
the demographic changes in society and, specifically, the increasing
significance of the elderly population in British society. You spoke
about some of the anticipated general benefits of creating a new,
integrated Care Quality Commission. How specifically will the new
commission help to improve the quality of care for older people in
society?
David
Rogers:
Well, there is of course the proof of the
pudding. Some elements that Anne has already mentioned are partly
relevant—who will head up the commission, who the individual
commissioners will be and how they will choose to operate and
particularly, returning to a point we have already made, their local
relationships with service providers and local authorities. If that
operates in the way that I believe it could, there will be one port of
call for everyone concerned. That will inevitably lead to improvements
in care. I suppose it is also true to say that we cannot be certain of
that until we see the shape of the new body and how it intends to
operate.
David
Rogers:
I am trying to avoid saying things that I
have already said, but because so much integration of service delivery
is already happening on the ground in towns, villages, cities and
suburbs up and down the country, to have a single regulator rather than
different people doing different things, which is the situation at the
moment, will be an improvement. There will be a single port of call.
Perhaps Anne can add to
that.
Anne
Williams:
It is the same point. An individual,
particularly an older person, is likely to move between health and
social care all the time if they have long-term conditions. A regulator
with an overview of the whole system is much to be desired as against a
number of different regulators, who will each know a bit of the system
but may not be joining up intelligence and knowledge across that
system. Such a regulator may be in a position to be truly individual
focused, not just health focused, social care focused or mental health
focused, because the needs cross all those
areas.
Q
192
Mr.
O’Brien:
This morning’s evidence, in
contrast, was that that will depend entirely on what the new regulator
is asked to do to ensure that there are no gaps through which things
will
fall.
Anne
Williams:
It will,
yes.
Q
193
Anne
Milton:
Have you any concerns about the
creation of the new organisation and the loss of
focus that there will inevitably be, because it is a major
reorganisation? What happens to services during that time? We can look
at the experience of the reorganisation of
PCTs.
David
Rogers:
Organisational change always causes some
short-term disruption and some loss of focus for a short period. If any
change is to be made, everything must be attempted to try to minimise
that, but I think the long-term benefits outweigh it. That is always
the judgment that has to be made. There may, of course, also be
transitional costs, but I think it is for you to pass judgment on
whether you think that is a reasonable
thing.
Q
194
Mr.
Bradshaw:
Councillor Rogers, I was interested in what you
said about the Litvinenko case. The Health Protection Agency said this
morning that it thought that moving to JPs would make the process
quicker and that was why it preferred that. You are saying the
opposite. Why in the Litvinenko case would you have had to have 46, I
think you said, separate applications for each separate premises? Could
you not have had a single application to a JP for all those
premises?
David
Rogers:
My understanding is that each place would
require a separate application. If that is not the case, your
information is different from mine, but that is our understanding of
how the process would work. Of course, there is the cost as well. We
understand that Westminster city council spent some £250,000 on
that particular matter. That is more likely to happen within London
perhaps, but if such a cost were to fall on the environmental health
department of a district council, it would be an enormous
sum.
Q
195
Mr.
O’Brien:
There may be a point arising from what the
Minister has just said. I think that most of the premises were licensed
premises, which has an effect potentially as well. To return to a point
that my colleague Anne Milton raised, have you had any discussions or,
indeed, assurances on the question of transitional
costs?
David
Rogers:
No, we have not looked at that in detail. I
was just making the general point that any structural
change—Mrs. Milton referred to PCTs, for
instance—involves transitional costs and sometimes, regrettably,
a lack of focus in the short term, but there may be longer-term
benefits.
Q
196
Mr.
O’Brien:
Do you feel that the Bill provides enough
of a framework and enough detail about how the transition will take
place, or is that an area that you hope that we will be able to develop
as we scrutinise the
Bill?
Anne
Williams:
I hope that
there would be a detailed transitional plan, and that any loss of focus
would concern us in social care, given the extreme vulnerability of
people. We know that there are issues about quality all the time. We
have seen several instances in the past
year in learning disability services and older people’s services,
so it is an area in which we cannot afford to take our eye off the ball
at all, either in local authorities or for regulators. A detailed
transitional plan is going to be very
important.
Further
consideration adjourned.—[Steve
McCabe.]
Adjourned
accordingly at four minutes to Seven o’clock till Thursday 10
January at Nine
o’clock.
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