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My ambition is therefore that we should discuss those safeguards and take note of the way in which the Government have sought to address them. That will enable me to explain what we have sought to do and noble Lords to move their amendments and to have that very important debate. If we remove Part 5, we do not prohibit alternative business structures. We inhibit their development, for sure, but we do so without

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establishing the important system of regulatory safeguards in the legislation to ensure that this develops properly. Noble Lords know that limited forms of alternative business structure practice will be able to continue to develop under the existing framework. Section 66 of the Courts and Legal Services Act makes it clear that nothing in the Solicitors Acts, the notaries Acts or common law prevented solicitors, notaries or barristers from entering into unincorporated associations with other people or restricted the circumstances in which they might do so.

Current protections are not enough. It is right and proper to develop alternative business structures, but it must be done within a proper regulatory framework to ensure that we have competition and greater innovation to the benefit not only of the consumer but of the legal services sector. We want to do that in a structured way that enables us to protect the consumer and the legal profession. We know that a healthy supplier base is absolutely essential to the provision of legal services and to achieving the objective of improving access to justice.

We also know that many legal professionals do not fear competition: quite the opposite. There are tools in Part 5 that will enable them to respond to changes in legal services and the business environment and to competition from new entrants into the market. They can use them to provide even better services to clients, which is at the heart of what the noble Lord, Lord Carlile, said he wished to achieve. I know that he wants to ensure that the quality of service provided to clients is of the highest order and the right calibre, hence the rather gloomy picture that he paints. I understand why he does not want the legal profession to lose face-to-face contact and the ability to talk to the client to give the best advice and to have that replaced by some remote structure, which he described by alluding to the call centre experience that he has had.

We want to achieve nothing other than better legal service. We do not want to do anything that will prevent rural communities from getting the best possible services. I do not think that the noble Lord intends this, but removing Part 5 could stifle innovation and prevent change. We believe that there is quite a lot of welcome, cautious though it may well be in part, for what might be achieved through alternative business structures to ensure a higher quality of services, a strong and vibrant legal profession, and good advice and support to consumers.

I therefore hope that the noble Lord will allow Part 5 to remain on the basis that noble Lords have quite reasonably wished to ensure that we have the right safeguards in place. I very much look forward to debating those later in our consideration of the Bill.

Lord Carlile of Berriew: My Lords, the Minister has replied helpfully in her customarily persuasive and courteous way, but I am afraid that we feel totally unpersuaded by what she has said. There is already a competitive market. We fear that the competition in that market will be removed. There is nothing that good lawyers like less than seeing legal work done badly. We believe that, despite the safeguards that are

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set out in the Bill and in the schedules, and indeed in the amendments that have been so helpfully tabled by some of those who have spoken eloquently in this short debate, we will be left with a situation in which the quality of legal services will diminish.

The Minister spoke of the existing possibilities of lawyers entering into unincorporated associations with one another. That is certainly possible now, but it is a very different professional picture from one in which there are very large incorporated organisations with a very large profit element to them. I say to the noble Lord, Lord Whitty, who spoke constructively to this amendment, that flexibility already exists, but the evidence is that what has been produced is not that good.

In the very large-scale market in personal injury cases, for example, we have seen more litigation with less merit. We have seen significant corporate fraud in the way in which cases have been obtained by corporate vehicles that have placed themselves in that market. Those of us who have been in the profession for a long time have also seen the unseemly picture of commercial organisations persuading people who have been injured in accidents to go to them, but then selling the cases, at a fee per case, to solicitors who then conduct them. I do not understand how that improves the competitive environment for consumers.

We on these Benches therefore feel intense disappointment that Part 5 remains so unmitigated in the Bill. Accordingly, we wish to test the opinion of the House.

7.09 pm

On Question, Whether the said amendment (No. 202) shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 116.

Division No. 3


Addington, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Carlile of Berriew, L.
Colville of Culross, V.
Cotter, L.
Darcy de Knayth, B.
Dykes, L.
Elles, B.
Garden, L.
Glasgow, E.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
McNally, L.
Mar and Kellie, E.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Rogan, L.
Shutt of Greetland, L. [Teller]
Slynn of Hadley, L.
Smith of Clifton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Walpole, L.
Walton of Detchant, L.
Williams of Crosby, B.

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Acton, L.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bilston, L.
Birt, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Drayson, L.
D'Souza, B.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greenway, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Murphy, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Prosser, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rees of Ludlow, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.20 pm.

Moved accordingly, and, on Question, Motion agreed to.

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Health: Doctors and Patients

7.20 pm

Lord Turnberg rose to ask Her Majesty’s Government what advice they will seek in formulating their response to the Chief Medical Officer’s report, Good Doctors, Safer Patients.

The noble Lord said: My Lords, now we have the Government’s response, it might be thought that this Question, which I put down some time ago, is somewhat redundant, but I believe I am not too late because the White Paper leaves open the prospect of much further consultation on the ways in which it might be put into practice. Thank goodness for that, because there are some areas of uncertainty which give rise to concern. I am going to concentrate on the proposals as they affect the General Medical Council, and I declare my interest as a former dean of a medical school, past president of a medical royal college, a one-time member of the GMC and currently president of the Medical Protection Society. In all those roles, I have strived to raise the standards, quality and safety of the care that patients should expect to receive from their doctors. So it should be clear where I am coming from when I say that I wonder whether the Government have got it quite right.

Let me try to put the White Paper into perspective. Here I reflect exactly what the Secretary of State says in her foreword:

She goes on to say:

Unfortunately, what follows falls somewhat short of those sentiments, yet the facts entirely support her statement. Over 1 million patient/doctor interactions take place each day in primary care alone, and every MORI poll shows high levels of trust in doctors by their patients. The most recent poll undertaken in 2006 showed that 92 per cent trusted their doctors. I hesitate to compare this with public trust in politicians or journalists, so I am not going to embarrass my noble friend, but it is considerably lower. I am afraid that this is a political reaction to journalists’ reports of the infrequent scandals which do occur and may have driven the way in which parts of this White Paper have been drafted. Unlike patients who largely trust their doctors, the White Paper gives a clear impression of mistrust.

Of course we have to protect patients from bad doctors, but we have to be sure that the right balance is struck between protecting the public and being fair to doctors, and I am not sure that we have got it quite right. Despite that, I have to say that there is much which is helpful and deserves support: the GMC continuing to oversee undergraduate medical education is very welcome because it does a good job and should

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continue to do so; and the introduction of a formal system of revalidation for doctors is also welcome. The fact that the colleges will have a leading role is important. They have been heavily involved for some time in developing systems for regular appraisal, and while they will need time to develop the robust systems required, this too is a very important development. The separation of the investigative and judicial functions of the GMC is an important principle, although it should be pointed out that the GMC has for some time had independent adjudicating panels without any members of the council itself sitting on them. All this is reasonably positive, especially as they all build on existing activities and make them more formal and obvious to everyone.

But we are left with a number of problematic aspects, and I shall concentrate on just two. First, the effect of the rest of the paper is to introduce a much heavier bureaucratic and, I fear, oppressive regulatory burden. It is worth mentioning here that in the UK we have one of the most over-regulated health systems in the world. A recent publication by the NHS Confederation complains bitterly that there are more than 57 regulatory and inspectoral bodies which attract enormous costs not just to run themselves, but also in the time and effort that trusts and doctors have to put into responding. Against that background, the White Paper suggests that we need not only to enhance the role of medical directors to include the monitoring of doctors in their patch and to introduce GMC affiliates at regional level to monitor those medical directors—although it is not yet entirely clear what their role will be—but also strengthening the role of the Council for Healthcare Regulatory Excellence, a body set up to monitor the activities of the GMC and the other bodies, presumably because they cannot be trusted.

In addition to all that, two further new levels of regulation are proposed, the first being regional medical regulatory support teams. They are called support teams, but their proposed membership suggests a heavy employer basis set up to exert control of medical directors and GMC affiliates. These teams will also keep a check on the way the colleges undertake the revalidation exercise—they will “quality assure” it. While it is unclear where they will get the expertise to do this, it does suggest that no one trusts anyone to do their job, and all at considerable expense and the loss of a sense of responsibility on the part of individuals as they hand over their professionalism to yet another body. The second level of regulation is another body at the national level, a “national advisory group” whose role and responsibilities are unclear and the need for which remains uncertain.

I would ask the Minister to look critically at the ways in which we might fulfil everything needed to ensure high-quality and safe care for patients without introducing such a seemingly heavy-handed and complex bureaucracy to achieve it. Do we really need all these bodies to keep a check on the others?

Finally, I want to spend a moment on the vexed question of the standard of proof. The White Paper proposes that the standard of proof in adjudicating on concerns about a doctor’s performance should be

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lowered from the current criminal standard to a civil standard of proof; that is, one based on the balance of probability. It is proposed that the civil standard should be applied “flexibly” and on a sliding scale dependent on the seriousness of the case. Here I have very real concerns. When I see the word “flexible” applied to the law, I worry, because it leaves open the potential for considerable inconsistencies between similar cases in the judgment of the panels. Furthermore, the words “sliding scale” evoke an image of a slippery slope. We are considering here the potential to deprive a doctor of her or his livelihood and leaving them with an indelible stain on their character and reputation. Of course we must protect patients and remove dangerous doctors, but one wants to be pretty clear about the safety of judgments. A low standard of proof leaves open the real risk of miscarriages of justice.

The White Paper recognises the problem in suggesting that a higher standard of proof will be required when allegations are more serious, but putting this good intention into practice is so dependent on the training of the judging panels and on their ability to be consistent that it is difficult to see how it will work fairly and justly for both patients and doctors. The costs and burden to everyone of a system which seems so loosely drawn up must be a cause for concern, and I ask my noble friend to take this back and at the very least see if he can think of ways in which the system might be made to work consistently and fairly, perhaps by piloting it in some way.

There are many other aspects of the White Paper which I am sure other noble Lords will cover in the enormous length of time in which they each have to speak, but I finish by pointing out that it was the Shipman affair which precipitated much of this work. While Dame Janet Smith’s report failed to throw up any suggestion that the GMC had itself behaved wrongly in any way, we have to ask ourselves whether the proposals in the White Paper would deter a determined murderer who happens to be a doctor. Unfortunately, I rather doubt it. This is an opportune moment to look at what should be done to improve the care and safety of patients, so I welcome the White Paper. But it will be vital to ensure that in the consultations we are now promised, we are able to make it work effectively and, most important, proportionately on the problems we are seeking to resolve.

7.30 pm

Lord Colwyn: My Lords, I congratulate the noble Lord, Lord Turnberg, on securing this important debate and giving us the opportunity to help advise the Government on their response to Sir Liam Donaldson’s report. I declare an interest: I am both a fellow of the British Dental Association and registered with the General Dental Council.

The British Medical Association has described the Chief Medical Officer’s recommendations as a missed opportunity that has failed to harness the medical profession’s enthusiasm for change. The Government’s

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response sets out a programme of changes to the UK’s system for the regulation of health professionals. Sadly, the proposals add up to the loss of professionally led medical regulation.

Professional regulation is a complex area and time is short, so I will limit my remarks to two broad areas. First, there is the critical nature of the four interlocking functions of healthcare professional regulation. Any future Bill put before this House should support the role of regulators in maintaining a robust and accessible register of practitioners, in having a key role in setting the standards for practice and supporting educational standards and in dealing with registrants whose performance consistently or seriously falls below acceptable standards. Any significant fragmentation of those roles would be to the detriment of patient safety. I therefore welcome the importance the White Paper attaches to proper co-ordination and coherence across those interlocking functions.

The second issue is that of the mobility of healthcare practitioners across borders, particularly within the European Union. Sir Liam Donaldson’s report and the subsequent White Paper both raise the issue of communications skills and language competency. While I recognise that there may be limits under European law for blanket language testing of health professionals from the EEA, I am not sure that the White Paper’s response deals with the issue sufficiently. Placing responsibility for language testing on NHS employers may be one part of the solution, but that fails to deal with the large numbers of healthcare professionals who operate outside the NHS or in a self-employed environment where the risks to patient safety may be the highest. I should be grateful if the Minister could clarify this in his reply.

Three minutes is not long enough to comment on these important changes. The White Paper states that the Government will publish a detailed implementation programme. Primary legislation is expected in the next parliamentary Session, although some of the proposals can be implemented through secondary legislation. I hope the Minister will be able to provide details of the timing of the publication of the implementation plan and details of the groups that will have to be set up to give careful consideration to this wide range of changes.

7.33 pm

Baroness Emerton: My Lords, I thank the noble Lord, Lord Turnberg, for introducing this debate. I declare an interest in that I was chairman of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and chaired the professional conduct committee. I was also a lay member of the General Medical Council and a member of its professional conduct committee.

The Nursing Midwifery Council is the UK regulator for two professions: nursing and midwifery. The primary purpose of the NMC is protection of the public. It does so through maintaining a register currently standing at 685,000 registrants. The NMC and the GMC both accept the recommendation in the White Paper of moving the standard of proof from criminal, beyond reasonable doubt, to the civil standard, the balance of probabilities. The BMA and the RCN are opposed to the change. Speaking from my personal experience, I

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would have found it very difficult to make a judgment under the civil standard when considering the future of a practitioner in relation to safety to the public, as well as to the possible loss of livelihood for the practitioner. I realise that the White Paper is suggesting a sliding scale being applied to the civil standard, but surely such an important decision should be based on “beyond reasonable doubt”; that is, a certainty on what has taken place rather than “more likely than not”, while at the same time safeguarding the presumption of innocence of the registrant. The suggested sliding scale is permissive and would give the adjudication panel discretion on how to deal with a particular case. That would create uncertainty for all parties concerned. If the sliding scale were to be introduced, there surely would need to be supporting regulations to provide definitive guidance to all parties.

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