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I turn to some specific questions raised by noble Lords. The noble Earl, Lord Howe, raised the issue of training and asked what the GMC is doing to prepare for the change. The GMC has carried out an extensive training programme for those directly affected by the introduction of the civil standard of proof, including panellists, legal assessors—lawyers who advise panellists on points of law during hearings—its in-house legal team and GMC staff involved in fitness-to-practise work. The training programme has been tailored to meet the needs of that particular audience, so that legal assessors, panellists and panel secretaries receive fairly detailed training, which includes a number of legal judgments, while panellist training includes a number of case studies. The training for investigation staff, who are not directly involved to the same degree, provides an overview of the change.

The noble Earl asked how consistency in the application of the standard can be assured. In addition to formal training, the GMC provides regular bulletins and other communications to panel chairmen and legal assessors. This flow of information about process and procedure includes updates on appeal cases, including those on regulators’ cases, relevant judicial reviews and statements on salient points of adjudication.

The GMC has a panel development team, which deals with panellists’ inquiries, monitors panellist feedback, provides the secretariats for a panellist forum in regular meetings between GMC managers and panellists’ representatives, audits all panel decisions, provides feedback, takes responsibility for panellist recruitment and retention, carries out panellist appraisal and assessment, maintains the list and provides management information on panel activity. We expect that OHPA will consider having similar arrangements in place.

The noble Earl asked about legally qualified chairmen. As eight out of the 11 heath professional regulators already use the civil standard, the vast majority do not have legally qualified chairmen. Perhaps the proof of fairness lies in the very low number of successful appeals to the High Court. He also asked about hearings, facts and evidence. I have outlined what the fitness-to-practise panel will do. It will have the assistance of a legal chair or assessors to advise it. He asked whether we anticipate more referrals for hearings. The advice provided by CHRE is that there may be a limited impact on decisions at

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the investigative stage. Decision-makers at that stage will inevitably be influenced by perceptions of the likelihood of the facts underlying a complaint being proved. The General Dental Council has not found any increases in erasures at the decision stage of adjudication.

The noble Baroness, Lady Finlay, asked why this needs to be in the Bill. That was answered very well by the noble Baroness, Lady Tonge. We think that changing to the civil standard is the right thing to do. It is a recommendation of the Shipman inquiry, and many regulators are already using it. We want to ensure consistency, not just now but in future, so that all health and social care regulators use that standard. That is why it is in the Bill.

The noble Baroness, Lady Tonge, spoke about defensive medicine, an issue that was also raised in another place. The noble Earl, too, asked whether health professionals would practise more defensively, erring on the side of caution. That argument rests on the idea that under the criminal standard professionals might choose more risky but potentially more effective clinical interventions. The Government do not believe that that would be the case. We do not believe that healthcare professionals will behave in that manner as a result of this change. We have confidence in their high professional standards and commitment to their patients. Where there is doubt, uncertainty or significant risk in making such judgments, healthcare professionals, who usually work in teams with other professionals, would generally make such decisions in consultation with their colleagues to ensure consensus of expert opinion and agreement.

The noble Baroness, Lady Tonge, asked what civil standards allow one to consider when making a judgment. It has been suggested that the change to the civil standard of proof will enable a panel to consider hearsay evidence. It is up to the chair of the panel to decide the admissibility of evidence, having taken into account representations from the parties concerned. This is a matter of civil procedure, as dealt with in procedural rules, not of the standard of proof. Once the evidence is admitted, the facts have to be considered by the panel using the civil standard of proof. I confirm that the change to civil standards will not affect in any way the admissibility of evidence or whether new evidence can be considered during the proceedings.

The change to the civil standard of proof enshrined in primary legislation will address concerns that the use of the criminal standard protects the interests of the professionals at the expense of the interests of patients. There is no convincing argument that one set of healthcare professionals should be treated in a different way from another set of healthcare professionals. This clause will ensure that we maintain consistency across the professional regulatory bodies so that the same level of protection is offered to all patients, no matter what kind of professional is caring for them.

4.15 pm

Baroness Finlay of Llandaff: The Minister made a statement on which I would appreciate some background. It was that the use, until recently, of the

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criminal standard has protected doctors, not patients. Where is the evidence for that? The GMC has been working for a long time to try to protect patients. That is in its mission statement and its long name. It is the General Medical Council, but its role is to protect patients; it is not there to protect doctors.

Baroness Thornton: I accept what the noble Baroness says, but I shall read out a quotation from the report by Nigel Pleming QC on the Kerr/Haslam case.

The point is that the GMC has taken the right decision. I was not suggesting that it is not concerned with protecting patients—not in the least—but using a civil standard of proof absolutely makes the case that that is what it is doing.

Baroness Finlay of Llandaff: I understand that the GMC has been keen to separate the investigation from the adjudication, which is precisely what is being provided for here. However, I remain concerned that we do not have to have primary legislation to do this. All the arguments for going with the civil standard of proof are that that will make available appropriate sanctions against doctors. I should like to take this away and think about it, because it is happening anyway. When I spoke to the president of the GMC, he, too, said that he did not understand why this needed primary legislation.

Earl Howe: This has been a useful debate. I thank the Minister for her reply. What doctors will want to be confident about is that the process is fair, in the sense of being consistent—and, if I can use the word without being misunderstood, reproducible. They need to be able to predict in advance how the civil standard will be applied. It is still not wholly clear to me that they necessarily will be able to, which is why I am uneasy about this proposal.

We need to bear in mind the fact that two major changes to fitness-to-practise adjudication proceedings are happening more or less at once, the first being the change in the standard of proof and the second being the increase in lay representation. Like it or not, different lay individuals bring their own values to a particular allegation. If a doctor has been accused of conducting an inappropriate internal examination on a female patient, one person on the panel may see that as a minor deviation from best practice, whereas another could regard it as a serious assault. Even if the facts of the case are fully understood, those differences of values are bound to come to the fore on occasion.

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That is one reason why, when looking back at our earlier amendment, I totally take on board the GMC’s desire to make sure that its indicative sanctions guidance has some standing in the way in which penalties are administered.

It is not just a question of penalties; it is also a question of how facts are interpreted. In the case that I have just imagined, the balance of probabilities is not only about whether the doctor conducted the internal examination; it is also about why he did so, what his motivations were and how he conducted himself during the consultation. The judgment of a lay person on those matters could well be quite different from the judgment of someone who is medically trained.

I am not arguing against lay membership of panels but merely pointing out that, for the profession to be confident in the integrity and consistency of the process, the combination of a sliding scale and lay membership of panels may create uncertainty rather than confidence. I have a high regard for the GMC and its current leadership and have to say that its latest note to parliamentarians gives us reassurance about how it is approaching the implementation of the standard.

Baroness Tonge: I accept what the noble Earl has just said, but would it not equally apply to all professionals? That is my worry—that we are somehow singling out the medical profession for a different standard of judgment. I do not think that that is right. Would he apply the comments that he has made to judgment of all other health professionals?

Earl Howe: The point that I am making is not so much about the theory as about the practice. We are in a transitional phase with the GMC and, as will shortly be the case, with OHPA. A lot is happening at once; it is quite a major change. I do not doubt that some years down the track what the noble Baroness says will be entirely accepted. As I say, it is not so much that we cannot sign up to the theory of what is happening; our concern is about the practical consequences of the proposals. We need to make sure that they are being handled as doctors would want. I accept the Minister’s basic point. I think that, with the consent of the Committee, it is time to move on, but I once again thank all noble Lords who have contributed.

Clause 107 agreed to.

Baroness Gardner of Parkes moved Amendment No. 137:

“(aa) any person who is a graduate or licentiate in dentistry of a dental authority who no longer practises dentistry;”.(a) in subsection (1)(b) after the word “fee” insert the words “, or non-practitioners reduced fee”;

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(b) in subsection (2A) for the words “a person’s name” substitute “the name of a person who practises dentistry”;(c) after subsection (2A) insert—“(2AA) Where the name of a person who falls within section 15(1)(aa) has been erased by virtue of failure to pay a fee prescribed under subsection (1)(b), that name shall be restored to the register on that person’s application if he pays the prescribed fee.””

The noble Baroness said: The amendment would give to dentists, through the General Dental Council, the rights that doctors already have under the General Medical Council. When I have asked the GDC and the Department of Health why only practising dentists can be on the register, the answer has always been that there was a flaw in the Dentists Act 1984, which did not allow my profession to be treated in the same way as the medical profession.

A letter from the Department of Health dated 2 April confirms that. For clarification, I shall mention another point in that letter, which was sent following Second Reading. It states:

I was wrong in thinking that the GMC holds separate lists; it holds both practising and non-practising doctors on its list.

The General Dental Council used to have an age-related reduced fee for dentists. In 2002, this was £15. In 2003, it jumped to £40—more than double—and, in 2004, it was abolished. Any dentist thereafter was asked to pay the full fee of £388. That was an almost a tenfold increase for older dentists, from £40 to almost £400. The current fee is £438. Those who believed that that was too great an increase for people not actually in practice, and therefore without an income and unable to claim tax deduction, decided not to pay. I was one. I remember that I received a notice saying that I would be “struck off” the register—a phrase used for malpractice. That terminology caused such offence that it was soon amended; I understand that the phrase that is now used is, “Your name will be removed from the register”. It is believed that about 2,500 dentists who would probably have been happy to pay, say, £100 a year were struck off that year, representing lost revenue of £250,000 to the GDC.

There is a further problem in that currently the register contains only the names of practising dentists who have complied with the continuing professional development—CPD—criteria. That was phased in from 2002. An annual practising certificate is available to those who have paid the annual fee of £438 and done the 250 hours of continuing professional development, 75 of which must be verifiable, over five years. There is no provision for leave of absence from the register for illness or maternity reasons and, if a dentist’s name is removed, he or she must apply for reinstatement and pay an additional fee of £110, making the fee £548. Doctors can and do remain on the medical register

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without a practising certificate. The difference is that only those with a practising certificate can practise. That is what I am suggesting for dentists.

I consider it to be in the interests of the public and the profession that dentists should be entitled to apply the same principles to their register—that the right to practise will belong only to those who have an annual practising certificate. It is important to make it clear that I am not trying to force the General Dental Council to introduce such a system; that would be for that body to decide in consultation with the profession, I would hope. My intention is simply to remove the legal obstacle that I have been told by members and past presidents of the GDC has prevented it from doing this. I find it hard to credit that the GDC opposes my amendment and is even lobbying against it. It is only an enabling amendment.

4.30 pm

The amendment would also be appropriate when revalidation is introduced; it would avoid the need for further legislation at that time. I have a copy of an article from GMCtoday entitled, “Your Licence to Practise”, which is about doctors. It states:

The article goes on to ask:

The answer, the article states, is:

I have received many letters of support from dentists and it is interesting to see the different angles and requirements that they have. I shall mention a few of them. The first letter is from someone who complained on three grounds. The first was that he would no longer be able to sign people’s passport applications. I do not think that non-practising doctors can do that, so that is not a relevant point. Secondly, he was unable to complete any former employees’ documents for GDC registration; in other words, he had been the principal dentist but could not sign for any of those who had worked for him unless he still had a GDC registration number. Thirdly, he stated that,

That is important, because in France the obligation is on you to be a good Samaritan. In this country, it seems that everything is against your being a good Samaritan, because people can sue you about everything.

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I shall read only a snippet of each letter, otherwise we would be here for days—and I have brought only a few of them. The next letter states:

I have been given examples about writing for or editing journals and so on. The letter continues:

Another letter states:

These are cases where people should know that these were qualified dentists. Another letter provides a different angle and states:

The letter goes on to state how he needed an income and so on and that he then qualified as a lawyer—and he is doing all right. This demonstrates the case of someone who is young and unable to continue practising. Perhaps he could have returned to dentistry despite that condition, but because he was so disillusioned by being removed from the register, was unable to afford to pay the fee and there was no leave of absence, he did something different. However, he is a loss to the profession.

Another letter says:

I dispute that statement from that dentist, because, as I say, the GDC is lobbying against this proposal, as if I was trying to force it to do this. All the indemnity insurance is covered.

Women dentists wanting to have a family might want leave of absence for a couple of years—but, no, if they want to do that, they must either pay the full fee for continuing professional registration or go off the register and pay the additional fee to come back. There is no provision whatever for career breaks, while doctors, of course, can have them. Someone told me that, when they had said how sad it was that they had to go off this year, they were treated very abruptly on the telephone by the GDC and got no sympathy at all. Someone else said that he was “virtually excluded” from his profession, which he found very hurtful. He went on to say:

In another letter, a man from the Society for the Advancement of Anaesthesia in Dentistry said:

A number of people have told me that they serve on boards or even trusts and cannot claim to be dentists because they are no longer on the register.

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The most interesting letter of all was from a woman dentist, who told me how hard this was fought by the profession. She said that members of the GDC had tried to get such a measure through but were told that it could not be done on legal grounds. She said that she was now 85 and that she had qualified at the age of 21 in 1944, having spent the war years studying in King’s College, London. She survived all the doodlebugs and everything else. She said:

There were seven of them, and apparently they were all dentists. She went on to say:

that is, the last year that she will be on the dental register—

and that she would,

She has,

but she finds that at 85 it is not easy to go on doing that, which I can understand. She says:

There is a lot more of great interest in the letter, which goes on to say:

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