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Lord Bach: Before I say a brief word about the amendments, I take this opportunity to comment on something that the noble Lord, Lord Lester, said. The Committee will recall that my noble friend Lord McIntosh of Haringey, who spoke on behalf of the Government at Second Reading, expressed our support for the Bill in principle. He added that the Government intended to bring forward an amendment to ensure that the Bill was compatible with the European Convention on Human Rights.
It was the Government's intention to move the amendment at this stage and I must apologise to the Committee that that has not been possible in the week since Second Reading. The noble Lord, Lord Lester, has very generously indicated that he is content for such an amendment to be tabled for Third Reading and I shall, of course, send him a copy for his consideration as soon as it is ready. Indeed, perhaps even more that, it is hoped to arrange a meeting with him as soon as it is ready.
I will briefly reiterate here the reasons why the Government consider it appropriate to amend the Bill and the nature of the amendment. Counsel's opinion
indicates that the Bill is not compatible with Article 14 of the ECHR in that it may be discriminatory on religious grounds. The Government, therefore, believe that an amendment is required to ensure that it is compliant. In effect, the amendment will alter the Bill to apply only to the Jewish faith but will give the Lord Chancellor the power to add other groups as and when appropriate.At the present time, it is only the Jewish community that has approached the Government for this remedy. It would not be appropriate to confer rights upon other faith groups without any evidence that this would be welcome to them. Other faith groups may, if they so wish, make a case to the Government for this provision to be extended to them.
I apologise to the noble Baroness for not turning to her amendment sooner but I do so now. As the Government are seeking to amend the Bill to widen its scope, it would be inappropriate for the Government to support the noble Baroness's amendments, which appear to be focused towards the needs of just one faith. If the purpose behind the amendments is to deal with a party who makes an application with the motive of delaying matters unreasonably, the Government believe that a judge will deal with that appropriately.
Baroness Miller of Hendon: I have listened carefully to what the noble Lord, Lord Lester, said and I listened too to the brief words from the noble Lord, Lord Mishcon. I should not dream of attempting to argue with two such learned lawyers.
Of course I am extremely disappointed. When this process started, I did not realise that this provision would be widened to include other religions. There is no way that I should wish to table any amendment which would affect another religion. That would certainly not be my intention. My understanding was that the Bill was drafted by the Board of Deputies and that the noble Lord, Lord Lester, was bringing it forward in order to help people. On that basis, I was concerned that we should get it right.
The noble Lord, Lord Lester, said that he does not believe that the amendment is necessary. In the narrow terms of Jewish divorce, I do not believe that it is unnecessary either. It merely makes the matter safer. But clearly, in view of what the Minister said, the amendment would interfere with the wider aspirations of what the Government wish to do with this Bill; namely, that the Lord Chancellor should later have the power to include other religions.
The noble Lord, Lord Lester, has given me an assurance that if my fears prove to be true, he would be happy to work with me later to improve the Bill in the way that I wish we could improve it now. I understand why that cannot be done. In the light of the noble Lord's assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed: Bill reported without amendment; Report received.
Medical Act 1983 (Amendment) Order 2000
12.14 p.m.
Lord Hunt of Kings Heath rose to move, That the draft order laid before the House on 29th June be approved [24th Report from the Joint Committee].
The noble Lord said: My Lords, this order concerns doctors, to whom I wish to pay tribute. We all rely on their expertise and ethical obligations to ensure that when we have to see them we shall be looked after properly. As I said in an earlier debate, we know that the great majority of doctors provide an excellent service and give their patients the best possible care.
Sadly, some doctors let down patients, their colleagues and their profession. Some, like Harold Shipman, bring shame on the whole profession because of their criminal acts. The public has to be protected from doctors who as a result of their conduct, competence or their health pose a threat to patient safety. We must be confident that we have the best systems for regulation and self-regulation firmly in place.
The General Medical Council must exist to protect patients. It must be truly accountable. It must be guided at all times by the welfare and safety of patients. Recent scandals involving a number of incompetent doctors have shocked the public. That is why such urgent action is required.
There is no doubt that the present systems have to be strengthened and changed. There are currently various gaps and loopholes in the GMC procedures which mean that doctors who may be a danger to patients can continue to practise. That is neither acceptable nor in the public interest.
Urgent action is needed to widen the powers of the GMC so that it can deal quickly and more effectively with doctors whose fitness to practise comes into question. This action is the first step in expressing the Government's determination to apply the lessons of recent events so that patients get the protection they deserve. The action we are taking, therefore, has to be seen in the context of the need for wider and broader change, which will be the subject of further discussion with the GMC.
The Government consulted on four proposals to widen the powers of the GMC: first, a new power to impose interim suspension or conditions quickly in any circumstance, including cases of performance and health; secondly, giving practical meaning to the GMC's premise that doctors who are erased from the medical register should not expect to return, save in the most exceptional circumstances, by introducing a minimum erasure period of five years; thirdly, placing a statutory duty on the GMC to notify employers and any other person or body who may need to be
informed of doctors whose fitness to practise is being formally considered by the GMC; fourthly, the GMC will be given a power to require health service and other bodies to supply information or to produce documents relevant to the GMC's consideration of a case; and, fifthly, enabling the GMC to co-opt non-members of the council to the professional conduct and other committees in order to open up the council to wider involvement in its committee work, tackle the backlog of cases currently under consideration and bring in wider views and experience.The proposals were published for public consultation in Modernising medical regulation: interim strengthening of the GMC's fitness to practise procedures on 24th March 2000. I am pleased to say that there was widespread support for the GMC's powers to be enhanced as proposed, including those from consumer representative bodies, NHS trusts and health authorities.
Medical and other healthcare professional bodies, including the Royal College of General Practitioners, the BMA and a number of the other medical Royal Colleges, also agreed the thrust of the proposals but stressed the importance of striking a balance between the public interest to protect patients, the profound effect of suspension on a doctor and natural justice.
It is important to note that in future the GMC will be able to impose interim suspension or conditions in any circumstance, including cases of performance and health. The power will be sufficiently wide so that the GMC can act swiftly and more effectively in response to unforeseen circumstances, which if it was unable to act would place patients at risk or damage public confidence in the medical profession. This proposal was well received. Many responses commented on the inadequacy of the current arrangements and the need for improvement.
This new power of interim suspension does not interfere with the financial arrangements for single-handed GPs, nor should it mean that single-handed GPs are disadvantaged. Doctors whose names are erased from the medical register represent the most severe cases of conviction or serious professional misconduct. When a doctor is removed from the register it is on the premise that he or she should not expect to be restored. The presumption is that if you are struck off, it is for life save in exceptional circumstances.
Currently, however, a doctor whose name has been removed may apply to have it restored after 10 months. If unsuccessful, he or she may apply every 10 months thereafter. Between the period 1988 and 1999, 153 doctors were erased and 39 were restored. The GMC proposed a package of measures, including a minimum erasure period of three years. The Government welcomed those proposals but believed that they did not go far enough and proposed a minimum erasure period of five years.
We believe that that would more closely match the GMC's own policy that doctors who are erased from the register should not expect to return, and give
practical meaning to the presumption that when a doctor is struck off it is for life, save, as I have said, in the most exceptional circumstances.The present arrangements need to be tightened, especially in relation to the period a doctor has to wait before he or she can apply for restoration. Views on the minimum period of erasure fell into three fairly evenly matched groups: those who agreed with five years; those who argued that more than three years would be tantamount to a life ban, and those who had no fixed view one way or the other and were much more concerned about having a rigorous assessment of a doctor's fitness to practise before he or she could ever be restored to the register.
The weight of public interest and the protection of patients is such that a minimum period of five years is not considered to be inherently incompatible with the ECHR for lack of proportionality. There was very strong support for the new disclosure provisions, which were particularly welcomed by private health care organisations, medical agencies and universities in respect of doctors working in the NHS on honorary contracts.
The proposals to allow the appointment of non-GMC members to committees were also very well received by the majority of respondents. There is general concern and dissatisfaction with the time taken to resolve cases referred to the GMC, and with the mounting backlog. This proposal has the potential to bring to the GMC a much-needed patient perspective to fitness to practise issues. It will be helpful to have non-members, including both medical and lay people, involved to help open up the council's work and make it more transparent, speedy and accountable.
We shall ensure that the GMC has a transparent selection process and proper training for non-members co-opted to GMC committees. The outcome of the consultation confirmed that there is very strong and widespread support for making sure that the GMC has the powers it needs to act swiftly and more effectively when a doctor's fitness to practise is called into question.
We have made one substantial additional provision. During the consultation period, reference was made to the case of a doctor who had come to this country from Canada where he had been convicted of raping and behaving violently towards a female colleague. The police reported the doctor to the GMC in June 1994 but the case was not determined until January 1996 when he was struck off. I understand that the GMC is currently considering another similar case.
These cases reveal the inadequacy of the current arrangements whereby the GMC cannot affect the registration of a doctor who has been convicted of a criminal offence abroad. The narrowness of the scope of the Medical Act 1983 compares unfavourably with the Dentists Act 1984 which allows the General Dental Council to determine suspension or erasure when a dentist has been convicted of a criminal offence in this country or an offence abroad which would constitute a criminal offence in this country.
The Government believe that what matters most is the protection of the public from doctors whose fitness to practise, whatever the reason, is called into question, and who would represent a serious risk to patients if allowed to continue to practise until the GMC has completed its consideration. We therefore agreed to the insertion of a clause giving the GMC the power to suspend or restrict the registration of a doctor convicted of a criminal offence abroad which constitutes a criminal offence in this country.
Following the consultation, the order has been improved to provide greater clarity, to avoid conflict with other enactments, to make it explicit that it covers doctors holding provisional, limited and full registration, and to ensure compliance with ECHR. In my view the provisions of this amendment order are compatible with the convention rights.
It is important that we learn the lessons of recent cases which have exposed deficiencies in the GMC's current arrangements for dealing with doctors who represent a danger to patients if they are allowed to continue to practise. We are determined to apply the lessons of those events so that patients do get the protection they deserve.
In addition to those matters which I have raised in your Lordships' House this morning, there is clearly a need for wider and broader change, which will be the subject of further discussion with the GMC, but strengthening the GMC's powers in these important and significant ways is a first step to repairing the damage that has been done. I commend the order to the House.
Moved, That the draft order laid before the House on 29th June be approved [24th Report from the Joint Committee].--(Lord Hunt of Kings Heath.)
12.30 p.m.
Lord Walton of Detchant: My Lords, there can be no doubt that in the recent past the medical profession has received a bad press. The problems that arose over the Bristol cardiac surgery cases, Dr Shipman, Dr Rodney Ledward and many other cases, very properly hit the public press and, to some extent, dented the public perception of the efficacy of the GMC and its procedures and dented public confidence in the medical profession.
However, I am glad that the Minister, and earlier this morning the noble Lord, Lord Colwyn, expressed a view with which I wholly concur, that the very great majority of doctors in this country are giving excellent service, often under almost intolerable pressure in an understaffed health service. There is little doubt that many of the procedures now being introduced, including the welcome revalidation procedures of the General Medical Council, will add to the burden under which those doctors are practising. However, that is a burden which, subject to full consultation on the implementation of the revalidation procedures, they will, in the majority, willingly accept.
I had the privilege of serving for 18 years on the General Medical Council and, for the last seven years of that period, as its president. I believe that much of the criticism levelled against the GMC in the course of the past few years has not only been ill-advised and ill-informed, but unfair, for the very good reason, as the Minister said, that many of the procedures under which the GMC has been working, as defined in the Medical Act 1983, have been rigid and inflexible. Many of the issues which it hoped to resolve have not been possible within the present framework of legislation.
During my presidency I and other members of the council became increasingly aware of the fact that we did not have procedures adequate to deal with incompetent or under-performing doctors. It was for that reason that we began consultations as long ago as 1985 on the possibility that new procedures might be introduced to deal with performance review in the medical profession. Under the distinguished presidency of my successor, the noble Lord, Lord Kilpatrick of Kincraig, those recommendations and consultations gathered pace but it took a full 10 years until 1995 before the performance review procedures were accepted as an amendment to the Medical Act. The process was long and tortuous, involving extensive consultation.
At that time, many of us wished to see additional powers vested in the GMC. We wanted to see a single form of registration introduced for all overseas doctors and a whole series of amendments to health procedures. But when we consulted with the government of the day at that time upon whether they would be likely to accept amendments to the performance review Bill or amendment to the Medical Act at that time, we were told that if we pressed such amendments, we would lose the Bill which the medical profession wished to see introduced. Happily, under the Health Act 1999, it is now possible to amend the constitution and procedures of the GMC by order, which is exactly what we are consulting about today.
I have to say, as a former president both of the GMC and the British Medical Association, that I was somewhat embarrassed by the vote passed at the BMA's annual representative body last week. I felt it was unfortunate in some respects; but even more unfortunate was the press publicity which covered that particular vote.
Perhaps I may make it entirely clear that the BMA does not wish to see the abolition of the General Medical Council. It stands by the principle of professional self-regulation. I cannot but recall that, in a notable article some years ago, the noble and learned Lord, Lord Hailsham of St Marylebone, wrote that professional self-regulation is one of the glories of a civilised society. In his Jeffcott Lecture to the Royal Society of Medicine, the noble Lord, Lord Dahrendorf, said that professional self-regulation was a principle to be preserved at all costs. He said that the alternative of regulation by the state was too fearful to be contemplated. He spoke with great authority,
having formerly been a German citizen where he had seen the effects of regulation by the state in his original native country.The BMA is quite clear that, whereas it has criticism of the present constitution of the GMC (upon which I shall comment briefly in a moment), it does not wish to lose the principle of professional self-regulation. It also feels that any reformed council should continue to have a majority of medical members. Where I slightly disagree with its comments is where it says that those medical members should all be involved in active medical practice.
The responsibilities of the General Medical Council are so enormous, not least when service on the professional conduct committee involves such arduous and complex deliberations--often for proper legal reasons--that sometimes cases go on not just for days but for weeks, that it can be extremely detrimental to the professional practice of an individual to have to serve on such committees. Hence it is important that we should keep the opportunity for appointing recently retired doctors who have more time to serve on such committees.
Perhaps I may also comment on the question of lay membership. The public in general do not realise that during my presidency we increased steadily the number of lay members to represent the public interest and that 25 per cent of the council is now made up of lay members. No decision by any committee affecting a doctor's registration can be taken without the participation usually of at least two lay members. Nevertheless, the proposals of the BMA and others to the effect that the number of lay members should be further increased will be welcomed.
Finally, all of the issues raised by the Minister and clearly set forward in his speech this morning are welcome to the GMC and the medical profession. As he rightly said, the GMC has been constrained by the existing provisions of the Medical Act which requires that any conviction or complaint against a doctor, however serious, cannot be acted upon before the preliminary proceedings committee has been able to meet and take full account of legal representations. Hence interim suspension as a possibility is a welcome introduction in that procedure.
As the Minister also said, the GMC at the moment is not able to take account of a criminal conviction in another country; nor indeed is it able, under the Medical Act, to take account of a doctor who has been erased from the medical register in another country. The Minister did not refer to that in his opening speech. One hopes that the regulation will include a similar provision because, under the law at present, that cannot be taken into account by the GMC until it receives notice of a complaint against that doctor.
The one issue upon which the medical profession may disagree with the provisions of the present order relate to the five-year minimum period of erasure from the register. The GMC and the BMA would prefer a three-year period feeling that, with issues such as the principle of rehabilitation of offenders, three years might be more appropriate. After five years the chance
of any doctor being able to return to active clinical practice is remote. My concern is that when I chaired meetings of the conduct committee of the GMC, I often found that lay members of the committee tended to take a somewhat more lenient view of doctors' behaviour than did the medical members. I have a feeling that the knowledge that a five-year ban could be tantamount almost to a lifelong ban may deter such a committee from recommending erasure of the doctor from the register.
With that caveat, I can say that the other provisions set out so clearly in this order are greatly to be welcomed, and I would not in any way wish to delay it. The regulations are timely. The GMC will be meeting next week to consider issues of its constitution and future activity. I believe the Minister is right in saying that consultations must proceed relating to its future structure and future procedures. In the mean time, these provisions are extremely welcome.
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