 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Health and Social Care |
Health and Social Care Bill |
The Committee consisted of the following Members:John Benger, Celia Blacklock,
Committee Clerks
† attended
the Committee
Public Bill CommitteeTuesday 22 January 2008[Afternoon][Derek Conway in the Chair]Health and Social Care BillClause 104Standard
of proof in fitness to practise
proceedings
Amendment
moved
[
this day
]: No. 50, in
clause 104, page 51, line 11, after
first ‘to’, insert ‘the finding of facts
in’.—[Mr. Stephen
O’Brien.]
The
Chairman:
I remind the Committee that with this we are
taking the following amendments: No. 51, in
clause 104, page 51, line 12, at
end insert—
‘(1A)
Notwithstanding subsection (1) the rules of procedure in any proceeding
to which subsection (1) applies shall be those which apply to criminal
proceedings.’.
No.
57, in
clause 115, page 62, line 30, at
end insert—
‘(1A)
Notwithstanding subsection (1) the rules of procedure in any proceeding
to which subsection (1) applies shall be those which apply to criminal
proceedings.’.
4
pm
Mr.
Stephen O'Brien (Eddisbury) (Con): I am very flattered
that what I was saying this morning was obviously of such intense
interest and attraction that all the Labour members of the Committee
have bothered to turn up again to hear what I say. I am most grateful
to them for
coming.
This morning
we were going through our amendments to clause 104 on standards of
proof, and I had just reached my final point, which dealt with some of
the oral evidence from Dr. Laurence Buckman and the British Medical
Association about defensive medicine. I explained that he had not made
the case as effectively as some of us thought he might have done, given
his justified concern that doctors would no longer be practising the
best health care for their patients, but rather the best health care
balanced with the best methods for avoiding any accusations that might
end up in a fitness to practise
hearing.
When I say
“justified concern,” I mean a concern that we all have to
take seriously, because anything said by the body representing doctors
about the way they may practise is something we need to note with care.
This is not a matter of contention in terms of the principle of moving
the standard of proof; it has not turned into something on which the
Committee is seeking to divide, but we owe it to the evidence we were
presented with to look at it with some
care.
Anne
Milton (Guildford) (Con): Although I recognise that the
BMA did not represent themselves terribly well during the evidence
hearings, the point about defensive medicine is important and it is a
concern. The Royal
College of Obstetricians and Gynaecologists has said that the number of
junior doctors wanting to go into obstetrics has dropped to an all-time
low because of fears of litigation; in fact, one of the reasons cited
for the increase in Caesarean sections is that doctors are very nervous
about litigation.
Mr.
O'Brien:
I am grateful to my hon. Friend, who is right to
raise that point. It highlights the difficulty for all of
us—particularly when dealing with new legislation—in
understanding how much it arises because of specific items such as the
one we are considering and how much because there has been a general
move toward what is most easily defined as a compensation culture,
where some may be driven by contingency legal fees or the purposes of
the settlement value or whatever it may be. I have some grave
difficulties with that and regret that we have moved to such a state of
affairs, but there we are: the general and the specific are often very
difficult to disaggregate. We all need to be concerned if there is a
trend towards more litigation and it is having an effect on
professional
practice.
The
concern can range from lowering the level of risk when clinical
decisions are made to doctors prescribing otiose procedures to hedge
themselves effectively, with the NHS footing the bill all the while.
Chapter 4 of the “Trust, Assurance and Safety” White
Paper touched on the issue, stating:
“This argument rests on
the misapprehension that, under the criminal standard, professionals
might choose more risky, but potentially more effective, clinical
interventions.”
The counter-argument is that
health professionals, with high professional standards of commitment to
their patients, would guard against that risk. Where there is
doubt,
“health
professionals, usually working within a team of other professionals,
would generally make such decisions in consultation with their
colleagues to ensure a consensus of expert opinion and agreement. In
addition, where significant doubt or concerns remain about a procedure,
intervention or prescription, clinicians are professionally obliged to
obtain informed consent from their patients...In emergencies, such
an approach may not be possible and the judgement of the individual
clinician in such a situation will be
paramount.”
Regulators
and panels would take that into account. It would be very helpful if
the Minister could give the Committee any further insight on the issue.
I recall the intervention of my hon. Friend the Member for Tiverton and
Honiton this morning, so the Minister’s comments may be helpful
to ensure that we do not regard the issue merely as an irritant in our
considerations, but to try and bring things to the level of reality. I
do not want to disclose the name of the doctor who wrote to me about
the defensive medicine issue, but he
said:
“To
illustrate this, today I saw 30 patients in surgeries and I have made 3
referrals from this day's work (which is about average for me). That is
a referral rate of 10%. Let's say I get nervous (which I will) and, as
a conservative estimate, I start on a day like this to refer 4
patients. That is an increase to a referral rate of roughly 13%. As an
increase in my workload it is negligible. However, the hospital sector
now has 4 instead of 3 referrals, an increase of 30%. Imagine a 30%
rise in outpatient work, X-rays, scans, and blood tests across the
board, because GPs need to manage the risk that a political appointee
will find them ‘probably’
incompetent.
There may
be other hidden costs. We may prescribe more. Many GPs nearing
retirement age will bail out now, rather than face such a hostile
future.”
That may be
the type of sentiment that the BMA was trying to reflect in evidence to
us. To be honest, I am not persuaded that view will drive the way the
system will work, but as legislators we have to take what the BMA has
presented to us seriously. We need to hear from the Minister that he
and the Government have carefully thought the matter through and how
they will make sure that moving the standard of proof does not lead to
unintended consequences—although, because we are debating them,
the consequences could not possibly be said to be unintended. The
consequences would be intended because, having considered the clause,
we shall definitely want to pass it—so we want to make sure that
no intended consequences lead to unfortunate
outcomes.
With that
series of arguments, I propose the amendments in the group. I look
forward to what the Minister has to say, in what is after all a broadly
consensual area. However, the Committee needs to have on record a lot
more detail of what lies behind the
proposals.
Sandra
Gidley (Romsey) (LD): Most of the debate is a stand part
debate as well, so my comments are generally on the whole principle of
the change to the standard of proof from criminal to civil, rather than
specifically on the detail of the amendment. I fully understand the
concern of the doctors. However, many professional regulators already
operate to a civil standard—my own profession, for example, but
many others as well.
I
am not particularly aware of cries of injustice over the outcomes of
determinations of fitness to practise. That is only my understanding,
but I have been told that the panels need a great degree of certainty
before coming to the decision to apply the ultimate sanction. However,
there are slight problems with some of the associated changes in the
Bill, which removed the finding of facts, separating them from the
decision as to which sanction should be applied. I want to talk about
that a little more later
on.
There appears to
be lack of certainty about whether some sliding scale of proof applies.
Assurances from the Minister before the Bill were that the rules would
be applied flexibly, but that does not, sadly, inspire
confidence—it is not lack of confidence in the Minister, but in
the consistency of the whole process. In addition, it has to be noted
that the profession appears to be divided. The General Medical Council
will be introducing the changes anyway, whatever we decide in the Bill,
but the BMA is opposed to them. I suspect that I am not alone among
members of the Committee in receiving numerous individual
representations from doctors who feel aggrieved. To say that they feel
“got at” is a bit dramatic, but they think that they do a
good job and that somehow there is a small risk that, just by doing
their job, they may get something wrong one day and lose their
livelihood. I am not sure that will happen in practice but I can
understand the concern.
In oral evidence the BMA said
that it was up to the Government to provide an evidence base as to why
the changes should be made. I asked the BMA for evidence to support its
claim that various things would go wrong and that there would be all
sorts of consequences. I have yet to receive any evidence that is
concrete proof that the change will lead to the fears expressed by the
BMA becoming a reality.
What causes me slight concern is
that clause 104 (4) says that the decision—if the clause is
voted on and goes ahead—can be amended only by primary
legislation. If it was fairly obvious that we had got it wrong,
although I do not think that will be the case, it would be helpful if
there were powers to enable us to make a quicker reversal by use of
secondary
legislation.
There are
also concerns that, because of the lack of transparency over
consistency, decisions could be made that would not inspire confidence
in the procedure. The proposal for a legally qualified chair in some of
the more difficult cases will probably help to supply some of that
consistency. In the light of our debate this morning it would be
helpful if the Minister could reflect on that
point.
Concerns have
been raised that there is likely to be considerable additional delay
and expense. There are also concerns that there may be more legal
challenges to protect doctors’ interests. If that were a fair
assessment of the situation I do not think it is something to which we
would happily say
yes.
The Medical
Defence Union provided some interesting food for thought. It
claims:
“The
argument that the public interest justifies a switch to a lower
standard of proof because public safety would be better safeguarded is
flawed...It cannot be in the public’s, patients’ or
profession’s interest for good doctors to be found impaired when
they are not. A lowering of the threshold of proof risks such
unfairness and will undermine confidence in the regulatory
process.”
Jeremy
Wright (Rugby and Kenilworth) (Con): Does the hon. Lady
agree that the other reason why the point she is making is valid is
that in essence the system will mean that the more serious the breach
by the doctor the higher the standard of proof will be? When the
patient is most at risk, the standard of proof is likely to be closest
to “beyond reasonable
doubt”.
Sandra
Gidley:
The hon. Gentleman makes an interesting point but
I will not be sidetracked by it at the moment. One of the points raised
by the MDU is that the standard to be applied needs to be clear at the
outset of the case. We heard some oral evidence to that effect. At the
time I was not sure if I agreed. The MDU
says:
“The
prosecution, defence and the FTP panel need to know the standard to be
applied at the start of the case. It is against this standard that the
evidence to be called will be assessed. However, in FTP hearings the
fact-finding stage precedes the sanction stage. In many cases the FTP
panels will not know at the outset whether the allegations, if proven,
are likely to result in suspension or erasure. How then will they know
whether they should be applying the highest civil
standard?”
4.15
pm
Mr.
O'Brien:
The hon. Lady is wrestling with some of the
issues with which we have had to contend. It is important to get things
right because many people will study this. It is clear that we agree in
principle that the standard of proof should change from criminal to
civil, and that there will be a differential standard within civil
proceedings—we had some testimony on that matter. However,
amendment No. 51 was deliberately designed to address some of her
points. It suggests that there should effectively be a criminal
procedure coupled with
a civil standard of proof. That would mean that if, at the outset or
during the course of a hearing, it were to become clear that the
consequences were much worse than people originally feared or thought
possible, the outcome could be more draconian.
A criminal procedure would mean
that the prosecution, for want of a better word, would have to lay out
its case in order, as a matter of justice, so that the defence would
have sight of the case against it and time to prepare before answering
it, whether or not the defendant were put in the witness box,
which is quite a big issue. That is why we would recommend amendment
No. 51, which would overcome some of the hon. Lady’s concerns
through procedure, rather than by affecting the standard of
proof.
Sandra
Gidley:
I thank the hon. Gentleman for clarifying the full
implications of his amendment. I have no problem with the basic
principle, but it is important to reassure the profession that people
will be heard
fairly.
Mr.
O'Brien:
I am conscious that my interventions are long,
but these are very detailed and complex legal issues. Amendment No. 51
was tabled because those who are accused of something are better
protected by the criminal procedure. A prosecution then has to lay out
its case, and it is up to the accused to decide whether they are guilty
or not guilty and, if they are the latter, whether to put themselves
under oath as part of their defence. That is different from criminal
court proceedings, and some things would have to be amended, but that
would give the professional in the dock a better ability to decide
whether they had a proper defence against the charges, rather than
being ambushed during the hearing, which would cause anxiety and also
lead to the uncertainty of not knowing the standard of proof that was
to be
satisfied.
Sandra
Gidley:
I was not disagreeing with the hon. Gentleman, but
merely reiterating that the confidence of the profession is very
important. It is one thing to have the confidence of the regulator, but
regulators are not always best loved by their professions because they
are sometimes regarded as policemen.
What would the change to the
civil standard achieve? Its purpose might be to lower the threshold for
findings of impairment of fitness to practice, thus bringing more
doctors under the FTP panels, yet the GMC itself does not believe the
change would achieve that result. A change to the civil standard would
import some disadvantages without meaningful benefit. Will the Minister
reassure us that this is not just a box that can be ticked as a result
of the Shipman inquiry, and that it will improve matters for patients
in the long run? Ultimately, that is what we ought to consider. While I
do not have a huge problem with the proposed change, I still have to be
convinced of the benefit to patients.
Kelvin
Hopkins (Luton, North) (Lab): I recently received a
briefing note on behalf of representatives of health care workers below
the level of doctor: nurses and other staff in the health sector. For
the benefit of
my hon. Friends, I think that it is important to put on record that they
are concerned about the aspect of the Bill relating to fitness to
practice proceedings. The Royal College of Nursing and Unison are
concerned about retaining confidence in the system. On their behalf,
may I ask the Minister to give us an assurance that a sliding standard
will be applied to all fitness to practice proceedings that will be
commensurate with the gravity of the allegation and the seriousness of
the consequences? It might be that these organisations will be seeing
the Minister privately. They might have already seen him
privately—I do not know. However, I thought it was important to
put this on
record.
Mr.
O'Brien:
The hon. Gentleman raises an important point of
principle. We heard a significant assurance when the eminent lawyer,
Lady Justice Smith, gave oral evidence. She said that that was integral
to the current common law and, indeed, to the practice of various
tribunals that are already in existence. What is not in the Bill,
however, is any reference to the sliding scale. There is just a move
from criminal to civil. The aim of these amendments is to reflect a
gradation in the civil standard of proof that would meet the
requirements of the constituency that he is seeking to represent. I
hope that he will realise that the important point of principle is the
need to get some sense of the sliding scale reflected in the
Bill.
Kelvin
Hopkins:
I am grateful to the hon. Gentleman for his
helpful intervention. I am not specifically seeking anything in the
Bill, but I want an assurance about these matters from my hon. Friend
the Minister. I hope that my hon. Friend will take note of
representations made both in Committee and elsewhere before coming to a
view on the final wording of the Bill before it becomes
law.
The
Minister of State, Department of Health (Mr. Ben
Bradshaw):
I congratulate the hon. Members for Romsey and
for Eddisbury on making a better job at putting forward the
BMA’s case than it managed. I think that that would be the
universal view of the
Committee.
I was
slightly confused by what the hon. Member for Romsey said. She started
by saying that her own profession used the civil standard without any
problems, and finished by asking why we were bothering to do this at
all. This was one of the main recommendations of Lady Justice Smith
that came out of the Shipman inquiry. The reason for it, however, is
that which she and even the GMC and others gave in our evidence
sessions. At the moment, because we have the extremes of either
something drastic happening, or nothing happening at all, there is a
reluctance to intervene early in a case. An example would be Shipman,
or cases in which someone’s professional conduct might not be
serious enough to warrant their striking off, but when another form of
intervention and the flexibility to intervene in another way, helped by
the civil standard of proof, might prevent something much more serious
from happening. This relates to a question asked by the hon. Member for
Eddisbury about the numbers of cases that we expect the independent
adjudicator to see.
With this
system and with the responsible officers in place locally, fewer cases
should need to go to adjudication in the end because more of them will
be nipped in the bud. As Sir Graeme Catto said in evidence, more cases
will be dealt with locally and will not have to be escalated up. This
is also about increasing public, patient and employer confidence in the
regulator’s ability to tackle all types of cases, creating a
system that is consistent across all health and social care, and
setting up a framework that will encourage employers to act more
proactively when previously a practitioner who might have needed help
has evaded action by the national regulator. This was one of Dame
Janet’s main recommendations. In our evidence session, she said
that it was the right thing to do
because
“we are talking
about a protective rather than criminal
jurisdiction”——[Official Report, Health
and Social Care Public Bill Committee, 8 January 2008; c. 40,
Q71.]
The GMC is
already moving towards the civil standard of proof. Professor Sir
Graeme Catto, in his evidence to the Committee, stated that six of the
regulators had already moved to the civil standard, that it was working
well for them, and that he did not see any reason why it should not
work well for doctors. Although the BMA has managed to generate a few
letters to members of the Committee and other Members of Parliament,
Sir Graeme told me that the GMC itself had received only 50 letters
from doctors protesting about a move to the civil standard of proof.
The implication was that that was not very
many.
It is right that
there is no sliding scale in the Bill. That will be a judgment call for
the panel, using the civil standard as described by Lady Justice Smith,
which can be applied flexibly and can take account of the gravity of
individual cases and how serious the outcome of proceedings might have
been for the individual. More serious matters would require a
heightened standard of proof, as is the case now. The courts recognise
that the civil standard is a flexible standard that should be applied
with greater or lesser strictness according to the seriousness of what
has to be proved and the implications of proving it.
Amendment No. 50 seems to be an
attempt to clarify in the Bill that the civil standard of proof would
be applied only to the finding of facts in FTP proceedings, not other
parts of proceedings. However, we do not think that that is necessary
because the clause can apply only to the finding of facts. The standard
of proof is applied by the panel or committee when it is considering
the evidence presented before it, and the evidence relates to whether
the alleged events
occurred.
The hon.
Member for Tiverton and Honiton asked whether guidance would be issued
to doctors to help them to get used to the new standard. We expect the
GMC to issue guidance on this. The Office of the Health Professions
Adjudicator will have a duty to make information on its functions
public, and the Council for Healthcare Regulatory Excellence could have
a role in making sure that there is clear guidance, and we have already
asked it to look at doing so.
The hon.
Member for Eddisbury raised the issue of consistency in applying the
civil standard. We have also asked the CHRE to look at how it can
ensure that there is consistency. Regarding appeals, individual
practitioners will be able to appeal to the High Court if they feel
that they have been unfairly treated.
Amendments Nos. 51 and 57 would
place a new requirement on the regulators to ensure that their
procedural rules are in keeping with those used for criminal court
cases in certain circumstances. We have a problem with that because it
would completely change the way in which regulators approach their
hearings. In practice, that would mean that matters such as disclosure,
jury trial, representations as to venue for hearing, rules relating to
evidence of character and hearsay evidence would be subject to the
types of provisions that apply to the criminal
procedure.
If
we accepted the amendments, regulatory bodies that have been
successfully using much simpler approaches in their FTP hearings would
find that they had to use more adversarial, time-consuming and costly
approaches with no added benefit to the individual practitioner or the
public. It is important that we emphasise that the hearing panel is
undertaking a protective role. It is not acting as a criminal court or
applying the criminal law. The purpose of the regulatory action is to
protect the public, not to punish the practitioner, and that is almost
exactly what Lady Justice Smith said in her evidence. It would
therefore be wholly inappropriate to impose the rules of criminal
proceedings on professional regulatory proceedings.
I congratulate the hon. Member
for Eddisbury on doing a better job that the BMA of trying to make its
point about defensive medicine. I found it very difficult to appreciate
the exact point that the BMA was trying to make, but I think it was
that, under the criminal standard, professionals might choose more
risky, but potentially more effective, clinical interventions. We do
not believe that health professionals will behave in that manner as a
result of the change. We are confident that their high professional
standards and commitment to patients will guard against the risk.
However, when there is doubt, uncertainty or significant risk in making
such judgments, health professionals who usually work in a team of
other professionals would generally make such decisions in consultation
with their colleagues to ensure that there was a consensus of expert
opinion. In addition, when such circumstances exist, clinicians are
professionally obliged to ensure that they receive informed consent
from their patients. I hope that my comments have reassured the hon.
Members and that the hon. Member for Eddisbury will see fit to withdraw
the
amendment.
4.30
pm
Mr.
O'Brien:
I listened carefully to the Minister and I am
grateful that he took us carefully through those items. I am glad to
hear that the CHRE is looking at the potential worries about the
question of fairness both between hearings and within hearings, where
there might be different applications of different standards by
different chairmen. The debate on clause 93 about the potential for a
legally qualified chair of the panel could be important. The Minister
has undertaken several times to go away and think that through, and we
will possibly revisit it on Report. I would welcome that, and the need
for it is reinforced by what we have just heard. There is an
expectation that there will be fewer fitness to practise hearings, and
if the chairs were legally qualified I suspect that the hearings would
rattle on nicely and be unlikely to be lengthier.
I emphasise a point that the
Minister did not touch on, as I think it is vital. It was also brought
up Lady Justice Smith. For the chairmen—legally qualified or
not—to work well, particularly given the approach that he is
taking on procedure, training will be key. If training is seen as a
priority, and that is vital, I will be
happy.
Mr.
Bradshaw:
I apologise for omitting to respond to that. I
can reassure the hon. Gentleman that we have requested advice from the
CHRE on how to make the transition to the civil standard as
smooth as possible, including the need for training and any other needs
of panel members. We have also asked for advice on changes in the
procedural process and the administrative arrangements, and on how
best, in the council’s opinion and that of individual regulatory
bodies, any difficulties in the areas that he has mentioned can be
overcome.
Mr.
O'Brien:
I am grateful for that. It is helpful. I noted
that the Minister was not keen to adopt the criminal style of
procedure, notwithstanding application of the civil standard of proof,
to give better potential protection to professionals who find
themselves under scrutiny. However, I will not press that
point.
I
hope that as a result of the debate the Minister and his officials will
reflect that it was not a question of tilting towards—although I
fully understand the phrase—making sure that we are focused on
protecting the public and therefore not seeking to punish the
practitioner. I practised at civil courts and in arbitrations for some
years. The point about the criminal process as opposed to the civil
standard process is that there is always the hope that during
cross-examination, despite the rules of discovery, one will end up with
a wonderful nugget of a time bomb or an ambush in order to achieve
success of the law. The whole point about the criminal procedure is
that it is up to the prosecution to lay out its case so that the
defendant can make sure that he is fully aware of what is against him
and can prepare to make the best defence
available.
The
protection of the practitioner—in fact, the whole process that
we are discussing—is secondary to protecting the public. That is
consistent with what Lady Justice Smith was absolutely determined to do
as a result of her reports on the Shipman inquiry. To make sure that we
hold on to her priority, it is right that we enable a sense of fairness
and justice in the process with the profession. That is the best answer
to the BMA’s issues about defensive medicine. While I am
grateful for the Minister’s flattery about making the case, I
was as unpersuaded as he was about that particular risk. He also read
out what I had cited as good reasons for not accepting that evidence.
The BMA raising the issue on behalf of practitioners made it incumbent
on us to look at the matter seriously, which we have done. On the basis
of our discussion, it is wholly appropriate to beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
104 ordered to stand part of the Bill.
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