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Medical (Professional Performance) Bill

9.31 p.m.

Report received.

Clause 1 [Professional performance]:

Lord Rea moved Amendment No. 1:

Page 3, line 27, at end insert—
("( ) Where in the course of inquiring into the case of a practitioner, it appears to the Committee on Professional Performance that his fitness to practise may be seriously impaired by reason of his physical or mental condition, the Committee may refer that question to the Health Committee for determination.".").

The noble Lord said: My Lords, in moving Amendment No. 1 I should like to speak also to Amendments Nos. 2 and 3.

I put down the amendments at the suggestion of my honourable friend Nigel Spearing MP who, as the noble Baroness is aware, has been since the time of his Private Member's Bill of 1984 one of the prime movers in the process which has finally taken shape in the Bill before the House today.

The three amendments provide for the transfer of a case under consideration from one to another of the statutory committees of the General Medical Council without having to go back to square one and allowing the doctor to continue to practise in the interim if it is felt by either the Professional Conduct Committee, the Health Committee or the new Committee on Professional Performance that a particular case would be more suitable for consideration by one of the other two committees.

Since I put down the amendments it has been drawn to my attention that paragraph 19 of the schedule to the Bill as it stands permits the transfer of cases from the Professional Conduct Committee, the Assessment Referral Committee or the Committee on Professional Performance to the Health Committee. However, as far as I can see, the Bill does not contain the provisions in my Amendments Nos. 2 or 3 which would allow referral from the Committee on Professional Performance to the more serious Professional Conduct Committee or, vice versa, from the Professional Conduct Committee downwards to the Committee on Professional Performance.

The case of Dr. Oliver Archer, whose patient Alfie Turner of Canning Town died in 1982 from meningitis, could well have been dealt with under Amendment No. 3. As it was, Dr. Archer was cleared of serious professional misconduct although he was fined for negligence. However, he was then allowed to continue practising. Only two years later, after a further incident, he was found unfit to practise after a referral to the Health Committee of the General Medical Council. On the face of it, although he was found unfit on health grounds, his actions in the first case would probably have been regarded as a serious failure of professional performance, if such an offence had then existed. This

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obviously dangerous and incompetent doctor was able to continue practising for two full years after the first incident.

It would not be appropriate for me to press the amendments tonight. I concede that Amendment No. 1 is not necessary. However, I shall be interested to hear the noble Baroness's comments on Amendments Nos. 2 and 3. It is clearly possible, in fact highly probable, that Dr. Archer was not the only doctor to have been cleared by the Professional Conduct Committee but whose standard of work was still seriously below an acceptable professional standard.

Amendment No. 3 allows the transfer of such a case directly to the new Committee on Professional Performance and does not allow such a doctor, who could well be a danger to the public, to return to practise.

Similarly, under Amendment No. 2, if during a hearing the Committee on Professional Performance—under the provisions of the Bill that committee can only suspend a doctor and not strike him off the register—were to find out during the hearing, for example, about conduct which was not initially reported but which it felt was so serious that the doctor should be removed from the register, it could immediately refer the doctor to the Committee on Professional Conduct which has the necessary powers to remove him.

As drafted, I do not think that the Bill allows the two forms of transfer as outlined in Amendments Nos. 2 and 3. However, I shall stand corrected if the noble Baroness can show me that it does. I beg to move.

Baroness Robson of Kiddington: My Lords, I support the spirit of the noble Lord's amendment, in particular Amendments Nos. 2 and 3.

On Amendment No. 3, if a person is found not guilty of serious professional misconduct, and is therefore allowed to return to practise, as the noble Lord demonstrated, that can cause great danger to the public. I hope the fact that the Bill sets up the Committee on Professional Performance means that that referral would be automatic. I look forward to hearing what the noble Baroness has to say.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, each of the fitness to practise procedures starts with a screening stage and may go on to committee stages if necessary. Transfers may occur at any stage, but it is only transfers to the Health Committee that we considered needed to be specified in primary legislation. That is already contained in the Bill—both transfers from the Assessment Referral Committee and the Committee on Professional Performance to the Health Committee. As the noble Lord, Lord Rea, acknowledged, it is in paragraph 19 of the schedule. In our view the amendment would serve only to duplicate the change to the Medical Act 1983 already made by the Bill.

With regard to the second amendment, in earlier proceedings on the Bill in another place, it was queried why there were no other transfers between committees in the Bill. The reason is that the Professional Conduct

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Committee and the Committee on Professional Performance will consider very different kinds of evidence. In conduct cases the committee considers evidence from witnesses on a basis akin to the criminal court. In performance cases, the committee will consider the results of an objective assessment relevant to the doctor's specialty. It will not therefore be appropriate to transfer cases directly from the Professional Conduct Committee to the Committee on Professional Performance or vice versa. The transfer will be to the relevant screener to initiate the collection of appropriate evidence. Transfers from a committee to screeners do not require a specific power in the Bill. The transfers will be dealt with in the GMC's rules of procedure. These rules, when made, are subject to approval by the Privy Council in the form of a statutory instrument and will be subject to the negative resolution procedures in either House of Parliament.

With regard to the third amendment, it is of a rather different order in that the amendment introduces a new clause which deals with a possible case where, as the noble Lord said, a doctor has been through the conduct proceedings, but has been found not guilty of serious professional misconduct, though the evidence throws doubt on the doctor's general performance. The GMC has a number of different routes open to handle allegations it receives about a doctor. The screeners will be very skilled in sifting the evidence and deciding which route is most appropriate. But sometimes, as a case proceeds and new evidence emerges, it will be apparent that another route might have been better.

Where there is prima facie evidence of misconduct, it must be right that the case is dealt with by the Professional Conduct Committee. But where the evidence, when carefully tested by due legal process, does not support a finding of serious professional misconduct, then that should be the outcome of that case. The committee must be fair to the doctor. It may nevertheless suspect that there is still a problem in the doctor's standard of professional performance. It is important to emphasise that it can have merely a suspicion—the evidence presented about one or more acts of possible professional misconduct is not the same as the evidence needed in an assessment of overall performance. The most the Professional Conduct Committee could do, in fairness, is to suggest that the performance screener should consider whether the doctor should be invited to undergo assessment under the professional performance procedures.

The performance screener would have available all the evidence already gathered by the GMC and the statements made by the doctor and any witnesses during the Professional Conduct Committee's hearing. We can be in no doubt that the screener would consider very seriously whether assessment would be in the doctor's interests and that of his patients. In an appropriate case, proceedings could begin quickly and would continue under the normal procedures set out in the Bill. The GMC would not have to wait for a new complaint to be made. It can, if you like, act on its own information.

I therefore ask your Lordships to reject the new clause. It suggests that the Professional Conduct Committee should have available a new type of

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finding—"suspicion" of seriously deficient conduct—in cases where it has failed to find, in the evidence brought before it, guilt of serious professional misconduct. We do not consider it helpful to create a further category of offence. Nevertheless I appreciate the valid point which the noble Lord is making, endorsed in spirit by the noble Baroness, that sometimes further investigation is warranted of the professional performance of a doctor who has been found not guilty of serious professional misconduct. The GMC will have, under this Bill, all the powers it needs to initiate a fair assessment of such a doctor's performance.

We have agreed with the GMC that the transfers between the conduct and performance procedures should be covered in rules. The GMC has given me its assurance that the rules it makes will enable such transfers to take place. With these reassurances, I hope that the noble Lord will feel able to withdraw his amendments.

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