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Earl Howe: My Lords, first, I thank the Minister for introducing this order and for his clear explanation of its meaning and effect. Subject to the points of detail I am about to raise, it is an order that I fully support. However, one thing needs stating first.
I believe it is important to recognise explicitly that the content of this affirmative instrument is very much the work of the GMC itself. Those who try to make out that the GMC has been dragged reluctantly into a process of procedural reform are completely and utterly mistaken. Indeed, anyone who has read the GMC's five-year review or its well-argued and detailed paper on revalidation can be in no doubt of the intensive efforts that it has devoted to these matters over the past few years under the dedicated and thoughtful chairmanship of Sir Donald Irvine.
I have had the benefit of more than one meeting with Sir Donald in recent weeks. I believe that both he and the council deserve our full backing in their efforts to make the GMC procedures more open and effective. The Minister is of course right to say that complaints are taking much longer to resolve than is desirable. That is as bad for patients as it is for the doctors who stand accused. The measures contained in this order represent the first step in making the whole system more responsive to serious, legitimate concerns about doctors and in taking the agonising delay out of the disciplinary process.
We have last year's Health Act to thank for the fact that these changes can be made by the relatively uncomplicated means of secondary legislation, and we on these Benches supported fully that element of the Act. It may be uncharitable of me, but the resolution passed last week by the BMA seemed to me to be ever so slightly hysterical. The GMC recognises, as it has for some considerable time, that change is necessary and that accountability within the profession has to be improved. Unfortunately, as the noble Lord, Lord Walton, so clearly pointed out, it has been constrained by the legislative framework within which it is currently obliged to operate. It is not fruitful to blame the GMC for the slowness of its internal procedures; nor is it appropriate, in my view, to blame the GMC
for the rise in the number of disciplinary cases referred to it over the past few years. Much of that rise is attributable to a failure within the NHS to handle complaints properly on a local basis as they occur. There is a need to ensure that that improves.That, I suggest, is a pointer for us in this debate, for this statutory instrument is part of a much wider readjustment of the relationship between the medical profession and the general public. The GMC and the changes to its constitution are only one part of the picture. The GMC cannot deliver quality assurance. It is for the NHS and the private sector to do that by putting appropriate clinical governance systems in place. Those systems, too, have to be effective if patient safety and patient confidence are to be protected. Only time will tell whether they are effective; but, if they are, then the regulatory framework need only be light.
I have several detailed questions arising from the order. The first relates to Article 9 and the change in the minimum period of a doctor's suspension, which has increased from 10 months to five years. The Minister will know that both the GMC and the BMA think that the period should be three years; indeed, the noble Lord referred to that fact. They do so because to exclude a practitioner for five years effectively prevents a doctor from ever rehabilitating himself. Underlying the order is a presumption that when a doctor is struck off the register that erasure should be permanent. That presumption is not in dispute. But there will on occasion be cases where natural justice demands that a doctor's fitness to practise is re-examined in the light of intervening circumstances.
In such cases, a doctor has to be given a realistic chance of resuming his career. A minimum period of three years allows for that. Many would argue that five years does not. I wonder whether the Minister could comment on whether his department is satisfied about the human rights aspect of the five-year minimum period? A desire to be tough on malpractice and the causes of malpractice should not overshadow the need for a proper balance to be struck on this issue.
My second question stems from the provision in Article 5 which allows the GMC to suspend or restrict the registration of a doctor convicted of a criminal offence abroad, which constitutes a criminal offence in England and Wales. This is clearly an important measure. Currently over half of all new registrants qualify overseas. The inclusion of offences committed overseas recognises the reality of the make-up of the medical register and serves to treat home and overseas qualifiers in an equitable manner. However, a disproportionately large number of overseas-trained doctors are the subject of complaints to the GMC. Is the Minister aware of the abiding concerns expressed by the GMC, and others, about the lack of any language aptitude tests for doctors who come to the UK from the European Economic Area? Such tests are currently illegal under European law. Is this something that concerns the Government?
There are good arguments for saying that a provision designed to underpin the free movement of labour has the effect of acting against the public interest. It also gives rise to unfairness as between doctors trained in the EEA, who do not take language tests, and doctors trained outside the EEA, who do. Do the Government plan to raise this issue at European level?
Finally, I should like to ask the Minister some more general questions about the Government's approach to the regulation of the medical profession. Up to now, the Government have reassured us of their commitment to uphold the principle of self-regulation, including the independence of the GMC. It would be helpful to have that assurance restated today. It would also be helpful to have an explicit statement of confidence in the professionalism of doctors. One of the disquieting features of the Government's dealings with the medical profession since they came to office has been what one might call the "anti-doctor tone" of many of their public utterances. The release of anti-doctor stories to the media, comments by the former Secretary of State about those involved in the Bristol case and the branding of doctors by the Prime Minister as part of the forces of conservatism all serve to undermine what the Government must recognise as vital to the well-being of our country and the health of the nation; namely, the trust that must exist between doctor and patient.
No one is saying that the Government should try to paper over the cracks in the system and pretend that nothing needs fixing. But the balance of government statements has been wrong. It has damaged the morale of the profession unnecessarily and unreasonably. I hope that we shall not hear much more from Ministers about the naming and shaming of doctors. The cases of seriously under-performing doctors are very few. Dr Shipman is, I trust, unique of his kind. This is not a trivial issue.
Aside from ministerial statements, a major part of the self-confidence of the profession stems from the fact that doctors feel ownership of their own professional standards. To attempt to set those standards from outside without doctors feeling ownership of them would, I believe, do profound damage to the quality of medical care in this country. In that context, I ask the Government the following questions. Do they believe, as I do, that the GMC has a crucial part to play in upholding professionalism and, thereby, fulfilling its essential role which is to protect patients? Following on from that question, do the Government believe in having a medical majority on the GMC?
There have been reports in the medical press that the Government intend to split the GMC's role to enable the Commission for Health Improvement to take over the task of investigating failing doctors. Can the Minister say anything about that? In particular, can he say whether he envisages the commission being given the power to instruct the GMC to suspend a doctor? If the GMC is to find its autonomy watered down in this way, I fear that that will do great damage to the self-confidence of the profession, with the wider
adverse repercussions to which I alluded. It would also somewhat defeat the point of the new power in Article 10 of the order to impose interim suspension on a doctor quickly in any circumstances.Self-regulation should not only operate; it should also be seen to be operating. If the GMC and its role are part of a wider array of co-regulation shared between the state and the profession, it is important that the balance between the two should be right. From these Benches we shall be maintaining a very careful watch over the way in which the Government proceed over the next few months in their dialogue with the GMC to develop structures of regulation in which the public can have full confidence.
12.45 p.m.
Lord Clement-Jones: My Lords, as we heard today, the GMC has not, since it was founded in 1858, come under such an intense spotlight as it has in the past two years. Noble Lords have mentioned the Bristol Royal Infirmary cases, the Shipman conviction and the Ritchie inquiry into the conduct of Rodney Ledward. All those cases have caused the public to question their confidence in doctors and, hence, the effectiveness of the self-regulation system run by the GMC.
Criticisms by junior and senior doctors alike have, over the past two weeks, led to an extraordinary crescendo of criticism by local medical committee representatives and the annual BMA conference of the GMC in its current form. Many commentators are convinced that, unless the GMC reforms itself urgently, the era of self-regulation will be impossible to justify. There is a view among some of those commentators--and clearly among many members of the medical profession--that the GMC has been dragging its feet and that it was only the Shipman case that stirred it into greater action.
I am rather less censorious. There are clearly internal tensions within the GMC, but I have never doubted its president's desire for reform. Moreover, as the noble Lord, Lord Walton, so cogently pointed out, the very statutory structure of the procedures and the GMC's constitution have made reform difficult. For that reason, I, too, welcome the powers contained in the Health Act of last year. That is the context in which we must look at the order before us today.
On these Benches we support the provisions of the order. But there are a number of questions that need to be asked and some comments to be made in connection with the various elements of the order. Previously, as we have heard, there was no power to suspend by the GMC unless there was a complaint or a conviction. It fell between two stools if, say, it was simply a matter of a case being under investigation, even where charges had been laid against an individual doctor.
In that context, we very much welcome the powers of interim suspension by the GMC, but we hope that there will be very clear and specific rules of procedure by the new Interim Orders Committee to ensure natural justice for those doctors who are to be heard before it. As was pointed out when we discussed the
Bill of the noble Baroness, Lady Knight, on the suspension of hospital doctors in recent weeks, suspension is a serious step and there should be appropriate safeguards for doctors in these circumstances.On these Benches, our view is these provisions should include a number of different elements. There should be no delay in bringing cases before the IOC. There should be a requirement for consultation by the IOC, particularly with appropriate practising clinicians. There should be a duty to consider alternatives to suspension, a requirement to give written reasons for decisions, and a right to appear in person before the IOC, and be represented. If the practitioner desires it, there should be a right for the hearing to be in public. Finally, there should certainly be a right not to be arbitrarily or unreasonably excluded from work premises. Many of those were elements which were very helpfully picked up in the Bill, which did not have government support, but they are nevertheless important elements of what should be in the GMC's codes of practice.
I turn now to restoration to the register. Currently a person struck off can apply for restoration to the register after 10 months. Clearly, as we all agree, this is inadequate. The new regulations will ensure that nobody can get back on the register until at least five years have elapsed. Some have called for lifetime bans, others including the GMC, prefer a three-year minimum period for being struck off. They believe that if a longer time is chosen as a minimum, a doctor might become totally deskilled. That would virtually constitute a life sentence in itself. I part company with the noble Earl, Lord Howe, and the noble Lord, Lord Walton, in that I suspect that these proposals have just about got the balance right. The Minister was correct to say that restoration through the register must be clearly seen as an exception.
There will be a duty of disclosure of information by the GMC to employers and others who need to be informed about someone whose fitness to practise is being considered by it. It will also have the power to obtain information from any person including health and other bodies where it is relevant to a case before it. But what safeguards will there be for individual privacy? Will the confidentiality requirements of the Health Act apply? Access to, and confidentiality of, records is an important issue. Will the GMC have more access to patients' records than patients themselves? What permissions will be required?
We very much welcome the proposals for non-council members on GMC committees. But what numbers are proposed? Is it proposed, as I believe, that there should be 50 such members who can serve on the GMC committees, such as the professional conduct committee? Can they serve on all the committees of the GMC, and not simply on the professional conduct committee?
We welcome other provisions in the order, and particularly the ability to treat criminal offences committed abroad as serious professional misconduct without further proof. The order will bring the GMC's
powers into line with those of the General Dental Council under the Dentists Act. As far as it goes, this is a welcome package of reform. At the same time, however, we should not let the opportunity pass without considering what other key elements are being put into place, and whether they will be sufficient to restore public confidence in doctors, and professional confidence in the GMC.The Minister alluded to several further developments. We welcome the GMC's recent proposal on the introduction of revalidation. But when will the consultations be completed, and what process is needed to ensure that they come into effect? Many of us are impatient to see a sensible scheme introduced quickly. The Royal College of General Practitioners is to be congratulated on having been early in the field, in November 1999, with its revalidation proposals for clinical general practice, but one asks why other members of the medical profession have not been quite so speedy.
We also welcome the reviews of the structure and legislative framework of the fitness to practise provisions, and of the structure, constitution and governance of the GMC which were announced in May. Currently, as the noble Lord, Lord Walton, pointed out, some 25 out of 104 members of the council are lay people. We very much welcome the increases that have taken place over recent years, and we believe that the principle of self-regulation should be retained if possible. But I very much hope that the GMC will work towards a lay presence on its council of nearly 50 per cent. What is the timetable for the review?
We also welcome the commitment which the GMC has made to speed up its procedures, partly assisted by what will be its new-found ability to have non-GMC members on its professional conduct committee. The GMC's workload has risen enormously. Complaints have risen by three times in six years, and I understand that there is a backlog of some 160 cases. I know personally of cases where severe injustice and heartache are being caused by delays in cases being heard. It is vital that the processes are massively improved and, if necessary, that more resources are devoted to ensuring that cases are heard more quickly.
Other issues clearly need addressing, such as information on candidates up for election to the council. The case of Dr Jennifer Coleman, who had been struck off in 1987 for professional misconduct, highlights the need for reform. We also need to be very clear about the demarcation between the NHS and the GMC in respect of clinical governance, and complaints about clinical performance. How do people know to whom to complain? Who sets the standards? How do doctors know to whom they are accountable, and what safeguards do they have against arbitrary action?
I understand that the Government are due to publish their plans on clinical governance later this month following the consultations on Supporting Doctors--Protecting Patients, along with the new national plan. Can the Minister confirm that this will ensure clarity on the relationship between health authorities and trusts, and their powers and duties, and those of the GMC?
Pension entitlement is also a matter which generates considerable heat. This is clearly a Department of Health issue, but it is clearly wrong that a doctor found guilty of misconduct should be bale to retire on a full pension. What action will the Secretary of State take to ensure that appropriate steps are taken?
At the end of the day, whatever the contents of orders, there is a limit to what can be done by procedures and processes. It is values and culture which matter, and which will prevent another Bristol or Shipman case and make sure that the James Elwoods and Rodney Ledwards of this world do not continue to practise. As Jean Ritchie QC pointed out in her report on the conduct of Rodney Ledward, we need a much more open whistle-blowing culture within the NHS. This is helpfully recognised by the Chief Medical Officer's recent paper Organisation With a Memory, on the reporting of adverse care events. It was also recognised in the latest edition of the GMC's Good Medical Practice. Doctors must clearly be seen to be on the side of the patient, not an incompetent colleague, and the GMC must reflect that in the way in which it operates.
We are heading in the right direction, but we need to move further and faster than we have ever done to date, and I hope that we shall see before us a much more fundamental Order in Council, containing reforms of the GMC and its practices, in a very short space of time.
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