Previous Section Back to Table of Contents Lords Hansard Home Page

Suspension of Hospital Medical Practitioners Bill [H.L.]

8.27 p.m.

Baroness Knight of Collingtree: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Baroness Knight of Collingtree.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Dean of Harptree) in the Chair.]

Clauses 1 to 3 agreed to.

Clause 4 [Sections 1 and 3: procedure etc.]:

Baroness Knight of Collingtree moved Amendment No. 1:

The noble Baroness said: With permission, in moving Amendment No. 1, I shall speak also to Amendment No. 2 because, as the Committee will see, Amendment No. 1 removes words which Amendment No. 2 replaces. Therefore, the two are clearly strongly linked.

I tabled these amendments in order to meet the points made by the Select Committee on Delegated Powers and Deregulation. The Committee will find its comments set out in its 8th Report of this Session, HL Paper 43. These two amendments deal with the only suggestion made by the Select Committee for a change in my Bill. I would perhaps describe them as "tidying up" and "listening to" voices from outside which were anxious that the Bill was so tidied. I beg to move.

Earl Howe: Although, as my noble friend has explained, these are largely technical amendments and therefore are worthy of support, I wonder whether I may be allowed to comment more generally on the subject matter of Clause 4 in the light of our debates at Second Reading. My impression from the Minister's speech at that stage was that, while he recognised the significance of some of the issues highlighted by my noble friend, he did not believe that a Bill such as this was the appropriate way in which to address them, and that the consultation process currently in train was likely to point the way towards other mechanisms which would deal satisfactorily with suspensions as well as with the more general issue of doctors whose clinical performance fell under criticism.

In particular, the noble Lord referred to the need to put in place robust monitoring procedures to ensure that doctors are not suspended unnecessarily, nor for an inordinate length of time. I accept that the CMO's proposals hold out the hope of a fairer and better process for some doctors whose standards of clinical performance are subject to criticism. But, as the Minister acknowledged, there will be cases when suspension is seen by hospital management as the only appropriate option available.

24 May 2000 : Column 855

I worry that Department of Health guidance may prove insufficiently effective to ensure the proper protection of doctors under human rights legislation, and more particularly to ensure that the systems in place in all hospitals are mutually consistent and consistently fair. I am, for example, concerned that a doctor would have a cast-iron right to independent representation and to a fair appeals process. Is the Minister confident that those aims are achievable without going down the legislative route? In other words, how will it be possible for the Secretary of State to bind hospitals into following set procedures that will deliver the equitable outcomes that we all want to see? If such fairness and uniformity cannot be achieved, the consequence is almost bound to be that doctors will resort to litigation. That would be a highly undesirable phenomenon.

8.30 p.m.

Lord Clement-Jones: I do not intend to go into great detail in relation to the subject matter of the amendment. I simply have a couple of questions. Naturally, as we on these Benches explained at Second Reading, we support the Bill and the rights provided under it. Clearly, in the light of the recommendations of the Committee on Delegated Powers and Deregulation, these two amendments are sensible, as the right of appeal to a tribunal is of the essence of the Bill.

Can the Minister say whether, since 13th April, he has considered the issues contained in the Bill in any greater detail? As I said at Second Reading, there are issues in the Bill that are not contained in the Government's proposals in Supporting Doctors, Protecting Patients. There are key safeguards: the requirement for consultation, particularly with "appropriate practising clinicians"; the duty to consider alternatives to suspension and whether that is needed to protect the interests of patients, staff and the practitioner; the requirement to give reasons for decisions and to convey those to the National Health Service Executive and any private hospital--a key requirement; the requirement to review; and the right of appeal to a tribunal, the very essence of the amendment that we are debating.

I do not believe that we can simply treat the consultation as frozen in aspic and await the results of that consultation. I hope that the Minister's mind has been influenced to a degree by the contents of the Bill and by the points made at Second Reading.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): A technical amendment has brought us to the core of our debate at Second Reading. The noble Baroness knows that while the Government are not convinced that her Bill is the right approach, none the less, we recognise the conviction with which she brings the matter to our attention. There is no doubt that the issue of poorly performing doctors is one that merits considerable attention by the Department of Health and individual employing NHS trusts.

24 May 2000 : Column 856

I have reflected on the debate that we had at Second Reading, but to the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, I say that I remain of the view that disciplinary issues such as these should not be a matter for legislation. I say to the noble Earl that I believe that it is possible to ensure that NHS trusts deal with suspensions and general disciplinary matters in an appropriate manner with which I believe your Lordships would be satisfied. It is possible to ensure that that happens through a performance management approach, which is the jargon used in the NHS to describe the way in which the Department of Health can assure, through Ministers and its accountability to Parliament, that the NHS is managed well at the local level.

We put considerable faith in the Chief Medical Officer's paper, Supporting Doctors, Protecting Patients, as that outlines the process of how doctors with problems can be helped. In the future we expect there to be an assessment and support service that will enable employers to deal with problems quickly and ensure that doctors with problems are helped. We believe that, as the majority of doctors who have problems relating to performance will be referred to the assessment and support service, there will be less of a need for suspensions. In future, suspending a doctor would be an exception rather than the rule.

However, the new system would retain the power of suspension of hospital doctors, but that would need to be considered only if a doctor refused referral to the assessment and support service. The employer can take action under internal disciplinary procedures in the case of alleged personal misconduct or failure to fulfil contractual responsibilities to protect patients where there is imminent danger to them or where the new service reports that the referred doctor's problem is serious and intractable.

The current status is that the consultation process is now closed. We are considering the comments that we have received and we shall announce our decisions in due course. However, I remain convinced that the process recommended by the CMO, subject to any changes as a result of consultation, is the route down which we should go. I fully accept that where disciplinary procedures have to be used, including the suspension of doctors, that needs to be an effective and fair system. I can certainly assure noble Lords that we shall have an effective performance management system in place to ensure that that occurs.

As far as the amendment is concerned, the noble Baroness is to be congratulated on bringing the matter to the attention of the House because it clears up the technicality raised by the Select Committee.

Baroness Knight of Collingtree: I am grateful to the Minister for some of his words, but perhaps I can comment on what he has said. First, this Bill is not--I repeat "not"--about poorly performing doctors. Out of 201 cases that I have monitored, only 25 were found guilty. The Bill is not brought forward in order to deal with poorly performing doctors. Secondly, the BMA, which has studied this subject almost as long as I have,

24 May 2000 : Column 857

is fully in agreement that this Bill is the only way in which to help the injustice that has been taking place because the report does not cover the matter.

On Question, amendment agreed to.

Baroness Knight of Collingtree moved Amendment No. 2:

    Page 3, line 7, at end insert--

("( ) Regulations made under subsection (2) shall be contained in a statutory instrument which shall be laid before Parliament and subject to annulment in pursuance of a resolution of either House.").

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.

Scotland Act 1998 (Modification of Functions) Order 2000

8.40 p.m.

Baroness Ramsay of Cartvale: rose to move, That the draft order laid before the House on 8th May be approved [18th Report from the Joint Committee].

The noble Baroness said: My Lords, with the leave of the House, I should like to speak to this order and also the following order together. The subjects for consideration are the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2000 and the draft Scotland Act 1998 (Modification of Functions) Order 2000.

Before going into the details of the orders, it may be helpful to put them into context and give a brief explanation of their purpose. The Scotland Act recognised that in some cases it would be appropriate for the Scottish Ministers to be able to exercise executive powers in areas where primary legislation continues to be a matter for the UK Parliament. This is commonly known as executive devolution. Section 63 of the Scotland Act allows functions in reserved areas to be transferred to the Scottish Ministers, or for the Scottish Ministers to be given a role by introducing requirements for them to be consulted or for their agreement to be obtained to the exercise of functions by UK Ministers.

Noble Lords may recall a previous order, considered in June 1999, called the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999--the first executive devolution order. That order ran to 30 pages, transferring a wide range of functions to the Scottish Ministers. The first order now before us adds a number of additional functions to those already executively devolved, where it has been agreed between the UK Government and the Scottish Executive that this is appropriate.

I turn to the content of the Scotland Act (Transfer of Functions to the Scottish Ministers etc.) Order. The National Board for Nursing, Midwifery and Health

24 May 2000 : Column 858

Visiting for Scotland (NBS) is an executive, non-departmental public body. Its function is to maintain and develop standards of professional education in nursing, midwifery and health visiting, through the approval of institutions and courses and through research and development programmes.

The board is part of the UK regulatory framework for the nursing professions, and the regulation of nurses and midwives is a reserved matter under the Scotland Act. Currently, professional self-regulation of nurses is carried out by five bodies: the UK Central Council for Nursing, Midwifery and Health Visiting (UKCC) and the four national boards, one each for England, Scotland, Wales and Northern Ireland. The national board for Scotland is, therefore, an integral part of the UK regulatory system, responsible for ensuring that entrants to the profession in Scotland and the courses of preparation that they undertake meet the UK Central Council for Nursing, Midwifery and Health Visiting standards.

However, it brings a distinctive Scottish perspective to this role, promoting developments in nurse education which are in tune with the Scottish higher education system and which meet the needs of the NHS in Scotland. For these reasons, it has always been funded by and accountable to the Health Department in Scotland.

Because of this, the UK Government and the Scottish executive agree that responsibility for the board should rest with the Scottish Ministers. The order therefore transfers to the Scottish Ministers all the ministerial functions under the Nurses, Midwives and Health Visitors Act 1997 as they relate to the national board for Scotland.

In addition, article 8 of the order provides for new arrangements for the auditing of the accounts for the national board for Scotland by the Auditor General for Scotland, to be consistent with the arrangements for public sector audit set out in the Public Finance and Accountability (Scotland) Act 2000.

The order also includes entries relating to the Disability Rights Commission. This body was set up earlier this year under the Disability Rights Commission Act 1999 and replaced the National Disability Council.

The separate order under Section 106 of the Scotland Act creates a new requirement that one of the commissioners should have "special knowledge of Scotland". The first order before us keys into this requirement and provides that this appointment is to be made with the agreement of the Scottish Ministers. Similar requirements were already in place for the National Disability Council.

Article 2 of the first order deals with the Tax Credits Act 1999. Section 15(3) of this Act allows the Secretary of State to accredit organisations which may approve childcare providers for the purposes of eligibility for the childcare element of the working families' tax credit and the disabled persons' tax credit. Such organisations must meet certain criteria. This article will provide that when an organisation is accredited

24 May 2000 : Column 859

for the purpose of applying a scheme for childcare providers in Scotland, the function will be treated as exercisable in or as regards Scotland.

In addition, the function of making regulations under Section 15 of that Act will now be exercisable by the Secretary of State only with the agreement of the Scottish Ministers. Section 15 provides for these regulations to put in place a scheme which would establish a new category of person whose charges for providing childcare would be taken into account when assessing eligibility for the childcare element of the working families' tax credit and the disabled persons' tax credit. In practice, this scheme will ensure that the childcare provider must be approved by an accredited organisation. This scheme also authorises making grants and loans to these organisations and ensures that the fees that they charge are reasonable.

The subject matter of Part VI of the Road Traffic Regulation Act 1984 deals with speed limits and is largely reserved, although some functions have already been executively devolved. This order further devolves certain functions in relation to temporary speed limits. This will mean that the Scottish Ministers will be able to make an order to impose a maximum speed limit, for periods of up to 18 months, on specified roads.

Article 4 relates to the Welfare Reform and Pensions Act 1999. This Act contains provisions relating to employment zones and allows for schemes to be set up in designated areas where special benefit rules can apply. Participants in the schemes are helped back to work by allowing them to anticipate funding for up to six months' worth of spending on training and jobsearch. To this they can add money equivalent to the payments that they would normally receive from the jobseeker's allowance.

Under the Act, the Secretary of State can also provide a wider range of support for activities within the employment zones which help people to get and keep work. This policy of "helping people to help themselves" extends to unemployed people who are seeking to become self- employed.

As a result of this order, the Scottish Ministers will be able to make payments to persons providing suitable facilities for claimants of the jobseeker's allowance to be trained for long-term employment. The Scottish Ministers, concurrently with UK Ministers, will now be able to fund any such eligible activity within an employment zone in Scotland.

Article 6 amends the first executive devolution order. The entry in the original order in respect of rule 4(1) of the Merchant Shipping (Formal Investigations) Rules 1985 was intended to transfer a function from the Secretary of State to the Scottish Ministers. However, other legislation in 1990 had already removed the ministerial function and conferred it on the Lord President of the Court of Session. Unfortunately, this was not identified during the preparation of the order. The entry in the original order is therefore redundant and is being removed.

24 May 2000 : Column 860

The other articles in the order are purely technical, either to amend certain terms and references in various enactments or to make transitional and saving provision with the transfer of functions.

On that basis, I hope that your Lordships will feel able to support these two orders. I beg to move.

Moved, That the draft order laid before the House on 8th May be approved [18th Report from the Joint Committee].--(Baroness Ramsay of Cartvale.)

Next Section Back to Table of Contents Lords Hansard Home Page