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The White Paper sets out the process for an appeal on the decision of the adjudicating committee; that is, that an appeal will be heard in the High Court. If the adjudicating panel has the status of a court, it surely cannot be right for another court of first instance to hear an appeal. At present, in the civil system, an appeal from either the county court or High Court goes to the Court of Appeal. Surely the adjudicating panel should be on a par with a court of the first instance. Why are Her Majesty’s Government recommending downgrading the appeal from the referral to the Judicial Committee of the Privy Council to a court of the first instance?

The White Paper proposes an implementation plan. Meanwhile, the current regulating bodies must continue their functions effectively and efficiently, while at the same time preparing for the changes. I bring two concerns of the NMC. In the spring of 2008 an election has to be held for the English council members, at a cost to the registrants’ fees. Should the new organisations be in place in 2008, the newly elected members would be redundant and the registrants not amused at their fees being used in this way.

Another concern is that the advanced nurse practitioners are currently practising without the protection of a register to the public and the practitioners themselves. Her Majesty’s Government have indicated that the council will be able to press ahead with a register. Is it not possible to bring forward permission for the council to open a supplementary part of the nursing register when so many advanced techniques are being carried out without protection to the public or the practitioner?

7.36 pm

Baroness Jones of Whitchurch: My Lords, I welcome the opportunity to contribute to this debate and to echo the emphasis of my noble friend on the need for wide consultation on this important issue. Some recent disturbing high-profile cases have underlined once again the need to put patient confidence and patient safety at the heart of the governance of the medical profession, but in the necessary push for reform we should also bear in mind that our current medical training and regulatory regime is respected as a gold standard internationally, the overwhelming majority of doctors are dedicated to providing high-quality

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patient care and patients continue to report high levels of trust in their doctors. This is not a plea for complacency; far from it. It is right that the GMC regularly initiates its own reform agenda as well as welcoming external review. But it is a plea for reform to be proportionate and substantiated.

I declare an interest. I am a member of the GMC’s fitness to practise panel, and I have sat on a number of disciplinary cases over the past year. That experience has provided an interesting contrast with my previous career as a trade union official, where for many years I championed employment rights and represented cases at employment tribunals. I have found the difference in the quality of the experience compelling. In particular, I have been impressed by the meticulous care taken to ensure that fitness to practise panels operate in a fair, transparent and independent manner. The panel selection process, the training, the care taken to assemble the cases, the conduct of the hearings and the review and feedback mechanisms have been refined over many years and are, to my mind, of enviable quality. The overarching principles in good medical practice and a commitment to patient safety cross-reference every stage and every decision. That is not to say that every decision is perfect. Even with the most professional system in the world, human beings are still fallible. In my experience, however, the current GMC culture faces up to those issues and learns from the mistakes, and surely that is the most important response.

I remain concerned that the report proposes a separation of the investigation and adjudication functions in fitness to practise cases. I acknowledge the superficial attraction of adjudication being undertaken by independent tribunals, but fear that the reality would be less expertise, less consistency and less trust in the process. A change of this importance should only be contemplated if the outcome will deliver better quality decisions, seen to be in the public interest, and I do not believe that that case has been made.

Finally, I should like to say a few words on the proposals for local GMC affiliates. Clearly more needs to be done to ensure that professional standards, set nationally, are applied consistently at a local level. But my concern is that the concept of GMC affiliates will concentrate responsibility for local standards in too few hands. Putting it bluntly, it lets everybody else off the hook. The solution to high standards of clinical governance has to rely on good-quality training for medical and non-medical staff, emphasising personal responsibility, and strengthening the employment role of trusts and medical employers.

I urge consideration of phased reform in these areas, with a period of evaluation, before contemplating more complex and, some might say, more bureaucratic changes.

7.40 pm

Lord Patel: My Lords, I, too, thank the noble Lord, Lord Turnberg, for securing this debate; of course, it would have been better to have had more time.

Much of what I have to say has been covered by the noble Lord, and I agree that there is a clear need for further elucidation of how many of the recommendations

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would work in practice. However, I am pleased that patient safety is central to all the proposals in the White Paper. But then, I would say that, wouldn’t I? I am the chairman of the National Patient Safety Agency. While I am at it, I might as well declare my previous interests, relating to colleges, the GMC and educational authorities.

I have some concerns, not about the proposals but about how clear, crisp legislation can be drafted on recommendations on affiliates, information-sharing and rehabilitation, for example. Who would the affiliate, as a local regulator, be accountable to? Could there not be a potential conflict of interest? How will she or he work across various NHS and private sector providers of care? Hard regulatory information about an individual practitioner is relatively easy to legislate for, but softer information and its sharing is much more complex. The questions are how and when the work will be taken forward, and who by.

I welcome the proposals on rehabilitation for health professionals who get into difficulty. This is a proper way forward and a modern approach to workforce management. We already have a framework developed by the National Clinical Assessment Service—part of the National Patient Safety Agency—to take this forward. In my view, it does not require further legislation. What is being done to do this and, importantly, how will it be resourced? For example, over the past three years about 500 doctors have been referred to the National Clinical Assessment Service for further evaluation. If revalidation and recertification throw up the same percentage of doctors—about 3 per cent to 5 per cent—the resources required would be considerable.

The briefs that we have received, particularly from the GMC and the BMA, differ in their perception of how this will work. However, my view is that revalidation, recertification and appraisal work, which will now form the statutory responsibilities of the colleges, is the right way forward. The colleges will have to recognise that they will have to produce, as the noble Lord, Lord Turnberg, said, a robust system that can be tested and that they have to be accountable. I hope that they will address that. In my role with the National Patient Safety Agency, I will look to see that patient safety is embedded thoroughly in all the proposals.

7.44 pm

Baroness Masham of Ilton: My Lords, there is nothing more important for patients who need a doctor to have one who is good, gets the diagnosis correct and sees that the patient has the appropriate treatment and care. Years ago, when I was a member of the Yorkshire Regional Health Authority, I was invited to open a GP surgery in South Yorkshire, which I did. Recently I was told that Dr Shipman had worked there. I shuddered. Doctors are usually trusted members of their community, doing the best for their patients, not killing them.

Last week a physiotherapist told me that she had heard of a very disturbing incident recently. A lady, living in a rural village in North Yorkshire, who did not have family support and was an amputee, had serious diarrhoea and vomiting. The GP visited. The

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women had only an informal carer. No care plan or professional nurses were arranged. When the GP had not managed to improve the situation and the patient was deteriorating, the informal carer bundled her into her own car and took her to the local hospital. The hospital staff were horrified when they found that she was dangerously dehydrated. She died soon afterwards. Many people are concerned about this case; they wonder what has been written on the death certificate and if there will be an inquiry. She was a lady in her 50s.

I am pleased that the General Medical Council, in its submission to Sir Liam’s review, has identified as one of its priorities greater patient and public involvement and easier access for patients and employers for information about their doctors. I hope that voluntary organisations representing patients in different ways will be able to help the Government in their response to this. With so many upheavals in the National Health Service and many doctors becoming disheartened and complacent, there need to be clear pathways of communication so that vulnerable patients receive the correct treatment and care.

When I was a member of the family health service authority in North Yorkshire, we knew how difficult and slow the procedures were in dealing with doctors who could put patients in danger. Two particular cases come to mind—one concerns a serious drug addict and the other an alcoholic. There can be a serious problem of young doctors drinking too much and becoming alcoholic in later life. There is also the difficult situation when depression and mental illness present. I hope that the dangers of such risks will be taught to medical students, involving their patients and themselves. This is an important subject—the safety of patients should always come first.

7.47 pm

Baroness Murphy: My Lords, a patient of mine, a retired plumber in Deptford, once said to me, “I suppose doctors are like plumbers—a third good, a third average and a third you wouldn’t want anywhere near your drains”. We might argue about the percentages, but most doctors would acknowledge that there is some small truth in the wisdom of the plumber in Deptford.

The public want us to take action to address their concerns about the quality of healthcare. We should support any endeavour to improve lifetime professional practice. Liam Donaldson’s report achieves about the right balance between heavy-handed regulation and the developmental supportive approach, which may not be popular with all my colleagues. How the Government respond to that by putting in the bureaucratic processes and systems to support it, I am not sure has been fully worked out.

I declare an interest as chair of council at St George’s, University of London, which has a medical school. I want to comment on aspects of medical education. First, I strongly welcome the proposal that the GMC’s judicial hearings should accept the standard of proof of the civil courts; I welcome the flexible approach. As an NHS manager, I was obliged to welcome back many colleagues who I was pretty sure would get their

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comeuppance from the GMC, only to have the case fail as a result of inappropriate standard of proof. I was then faced with the horrible disciplinary dilemma of the doctor coming back to the trust without having a proper way to deal with it. The standard of proof is inappropriate. It is crucial that we create a system whereby the GMC system of regulation is more closely related to the local disciplinary processes and support systems within the trusts. Although the new affiliate system may become over-bureaucratised, it is, in principle, a good way to achieve that.

I support recommendation 23 that students should be registered with the GMC and the proposal for new GMC affiliates on the medical school staff to operate fitness to practise in parallel with the system for registered doctors. However, in view of the fact that expertise in these matters is not easy to come by, regional teams of affiliates with real experience of issues could build up expertise within medical schools. That might be preferable to multiple local affiliates.

These issues need sympathetic and careful handling. A first-year student’s problems and bad behaviour may be acceptable in the first year, but not in the final year. We need to develop sympathetic systems to look at fitness to practise in medical students. Overall, I welcome this report and look forward to the Government's further responses.

7.50 pm

Lord Walton of Detchant: My Lords, we are in serious danger of living in a grossly over-regulated society. There is no doubt that the Government have inadvertently slipped into a situation of developing an almost intolerable quangocracy in the healthcare field. As the NHS Confederation said, 56 organisations capable of inspecting and assessing behaviour in the health service is far too many and has caused serious damage to professional morale. It has also taken away from the bedside and from patient care many people who could have been devoting their time much more effectively.

I speak as a former president of the General Medical Council. Many things in the CMO's report and in the White Paper that followed should be welcomed but, like others who have spoken, I recognise that the high-profile cases that have received so much attention in the media dented public confidence in the profession for some time. Nevertheless, as the noble Lord, Lord Turnberg, said so explicitly, survey after survey of patient attitudes has demonstrated that they hold the medical and nursing professions in the highest possible esteem and trust them implicitly.

I now turn to one or two points in the CMO's report and the White Paper. First, I wholly accept that the GMC in the future will be made up of at least equal numbers of lay and medical people. I also accept that members of the council should be appointed by an independent process which must be independent of government after full consultation with all interested parties. However, like others, I am concerned about the flexible standard of proof. There is a very real risk that with clever lawyers arguing cases, the flexible standard of proof on the balance of probabilities may lead to serious injustice.

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Like the noble Lord, Lord Turnberg, I believe that the role of the colleges in revalidation and in licensure will be vital to the future of the medical profession. If they do that job properly in collaboration with the GMC, I see no need for the continuation of the National Clinical Assessment Authority, just as I am concerned that we have Big Brother in the council for the regulation of the health professions overseeing the activities of the regulatory authorities—Big Brother looking over the shoulder of Big Brother. I am not certain that that whole process should continue.

Turning to fitness to practise, it is absolutely clear that the GMC, in its recent activity, has separated the fitness to practise panels totally from membership of the council and that process should continue. It will give the council and the public confidence that doctors will be handled compassionately but at the same time firmly if they are not up to the standard that the health professions should require.

The time has come for the Government to undertake a period of calm reflection and consideration. The White Paper is like a curate's egg: it is very good in parts. But the Government must, in future consultation, carry responsible medical opinion with them in proceeding with this programme of reform.

7.54 pm

Baroness Finlay of Llandaff: My Lords, I, too, thank the noble Lord, Lord Turnberg, and declare that I am registered with the GMC. The foreword to Good Doctors, Safer Patients points out,

How true that is. Reform must command the confidence of doctors and patients alike, so regulation must be truly independent of government and interested parties yet encompass the expertise to assess complex issues.

Revalidation processes must be fair and consistent throughout the UK because there are variations in clinical governance, structures and appraisal systems, particularly in primary care, and diverging health structures are increasingly emerging throughout the four parts of the UK. Revalidation must be flexible to cope with different work settings and career paths, including those outside ordinary clinical medicine.

The engagement of the royal colleges will be crucial in holding the confidence of the profession. The task of the GMC in co-ordinating all stages of medical education is a welcome step towards that. But can the Minister clarify when local NHS systems throughout the UK might be ready to deliver what will be required of them? As professional mobility increases, non-UK graduates who practise medicine here must be subject to the same level of regulatory scrutiny as UK graduates: the standard must be the same.

The disciplinary elements are of concern. If the standard of proof is to be applied flexibly, the profession will seek the assurance that the criminal level of proof will be required to strike a practitioner off the register, whereas the civil level of proof will be used to guide retraining.

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My last point is about recorded concerns. The danger is that recorded concerns will push doctors into defensive practice. Sometimes, it is in the interest of the individual patient to take a risk. We already have clinical hesitation at times, driven by defensive practice. A vexatious complainant or another member of staff who bears a personal grudge may seize on an action that is a valid patient-orientated decision, but falls far outside the current guidelines or protocols. I fail to see how that doctor is guaranteed a fair hearing and without being confident of a fair hearing, human nature is to veer on the side of precaution, stick within the protocol and, in the process, deny a patient. Patients are complex individuals, but guidelines and protocols are written for an average and can be too rigid. A very specific example is that it is now almost impossible to get an epidural put into a patient in pain at home, whereas some years ago it was easy. It is such un-standard practice that anaesthetists will simply not undertake it.

Overall, the intention of the documentation is good, but the proposed system is complex and proposals such as affiliates may eventually work against some patients with complex and unusual needs.

7.57 pm

Baroness Barker: My Lords, I, too, thank the noble Lord, Lord Turnberg, for this brief opportunity to address these issues.

My principal concern is that all the inquiry reports that have led to the report by the CMO have put forward many different proposals—some will please some professional bodies and others will not. The one thing that the Government have to do, at a time when healthcare provision is becoming increasingly disparate and diffused, is to provide a coherent basis for systems of quality assurance, evaluation and regulation that are consistent, robust and readily understood. The central problem is that the Government's response is being diffused over a number of different pieces of legislation and many different bodies, such as some of the new bodies that have been put forward. It is not clear where responsibility will lie for the oversight of consistency of standards.

Last year noble Lords spent some time looking in detail at the NHS redress system, yet the proposals in this report go in a completely different direction from the case that the Government were arguing on complaints in the NHS. In practice, that is bound to create a difficulty for practitioners and regulators.

The further set of proposals—and the Government’s response to what happened with Dame Janet Smith’s report—will be contained in the legislation on the review of the coroners’ courts and the coroners’ system. Let us remember that at the heart of the Shipman case was a doctor who was an excellent communicator and had enormous personal standing in his community—I know because friends of mine lived there—and that there was a failure in the notification system around death certificates. That is why so many murders went unreported for so long. It is tremendously important when dealing with bad and criminal practice that the proposals from the Government and the GMC are

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consistent with that, and that it is possible to see how those two systems work together to guarantee patient safety in the worst cases.

Running throughout these reports is a consistent argument that doctors need to be able to communicate better with patients. Bad doctors can sometimes communicate extremely well; that is how they get round the system. What is never made clear in any of these documents is what the nature of that communication should be and how patients will be enabled to spot bad practice. I simply draw to your Lordships’ attention that patients’ forums are yet again to be reorganised. They are an important mechanism by which the public gain the technical knowledge to make assessments of healthcare.

It is not that there are not good proposals in all of this or that there are proposals that we could not argue about individually; the big concern is that its parts may not add up to an adequate and consistent whole. That, I fear.

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