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I feel that I have to defend my Minister of Health in the National Assembly for Wales, with whom I had a constructive meeting yesterday and who is very engaged in issues for healthcare professions at a local level within Wales. It would be hard, within a devolved pattern of healthcare delivery, to find that there was a consultation but that, even if the Minister disagreed strongly, something was somehow imposed. But with those caveats around the amendments that are not mine, I shall not press my amendment.

Earl Howe: I am grateful to the noble Baroness for giving way before she advises the Grand Committee on what she would like to do. On my own two amendments, I think that the Minister’s replies were rather less convincing than some of her other replies

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have been. To use the word “investigating” in relation to the performance of a medical regulator is entirely appropriate. The CHRE can be tasked and is tasked with investigating the performance of the regulators. However, to say that it may investigate individual cases in support of that task is an unnecessary adherence to symmetry in the drafting, if I can put it that way.

On Amendment No. 141, it seems to me that to say that,

is a very broad power of direction. I note what the noble Baroness has said about how that power might be used and that there is no sinister intent, but to give the example that Ministers may want to direct the council as to how it prioritises its workload is very odd. That can surely be done without the council being directed.

I shall need to have further thoughts about both the amendments between now and Report, but of course I shall not press the amendments in Committee.

Baroness Finlay of Llandaff: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139A and 140 not moved.]

Clause 110 agreed to.

Clause 111 [Powers of Secretary of State and devolved administrations]:

[Amendment No. 141 not moved.]

Clause 111 agreed to.

Clauses 112 and 113 agreed to.

Clause 114 [Responsible officers and their duties relating to medical profession]:

Baroness Finlay of Llandaff moved Amendment No. 142:

The noble Baroness said: We come to a slightly different part of the Bill, which relates to responsible officers, who are being charged with the early identification of problems and thereby remediation of problems before they get to the point where they damage patient care. As a principle, that is to be welcomed. There are rigorous and well established processes already, but they might prove impractical in relation to responsible officers as outlined in the Bill. This does not really relate to those working in trusts, where there are already clear appraisal processes, but it relates to those working in general practice. There is a concern that the responsible officer might be someone who is either too close to or has some bias against the person whom they are overseeing.

The way in which the Bill is drafted gives rise to the concern that the responsible officer does not necessarily have to be a registered medical practitioner. If one is

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looking at a degree of self-regulation and the early identification of problems, there is a lot of wisdom in making sure that the responsible officer has a medical background. This is currently the case in trusts, where the medical director is the person to whom the doctor would be answerable.

Amendment No. 144 has been drafted to cover situations where personal issues are involved. In such cases the responsible officer is not automatically designated but provision is made for an alternative responsible officer to be appointed. Two examples of where this might apply have been brought to my attention by doctors. The first example is a marital dispute involving two doctors, where either they have been married and then divorced or one of them has had an involvement with the spouse of the other, which can create a tense and difficult environment. The other example, a situation which has already arisen, is where the medical director of a PCT had a serious falling out, at practice level, with one of the partners and the partner had nowhere to go to seek support. She was very keen to have the choice of going to a responsible officer at a neighbouring PCT for her professional registration to be overseen and scrutinised because of the fear of vindictive recriminations against her.

That is the background to the drafting of the amendments. I have discussed the amendments with the Medical Defence Union and the Medical Protection Society, which is particularly supportive of them. I beg to move.

5.15 pm

Earl Howe: It is clear from my own recent discussions with the medical profession and bodies that represent doctors that the proposals in the Bill for the creation of responsible officers have created a good deal of unease and uncertainty. Underlying that unease is a mixture of thoughts. The responsible officer will have to look in several directions at once. He will have to command the confidence of his peers, his employers, the GMC and patients. He or she will have a lead role in supporting good clinical governance and in the performance management of doctors. He will have to take part in the management of clinical investigations arising from adverse incidents or complaints. To achieve all this, he or she has to be a person with an unusual set of competences and skills. The question that I have asked myself is how many people of such calibre there are, given the large number of trusts that need to make these appointments.

By any measure, the responsible officer will perform a pivotal and powerful role in the trust of a kind that, not to exaggerate the point, could make or break the health of the organisation. As we have heard, it is the Government’s view that medical directors will often be the people best placed to become responsible officers. I have no reason to dissent from that view, although I do not think that it will necessarily be the right thing to do in every case. What will matter above all are the calibre and personal qualities of the individual.

There is an important pastoral dimension to the role—the need for the responsible officer to be able to support and assist doctors who may be struggling for

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any reason. That takes a certain sort of person. Equally, it is obvious that internal politics and professional jealousies can influence, or be seen as influencing, the agendas that underlie how poor performance is managed. I very much identify with the points made in that context by the noble Baroness, Lady Finlay.

Good training in the role will therefore be essential. Good training has to be based on best practice. Examples of best practice need to be identified and built on. It is not clear to me who will undertake this rather special sort of training and I should be glad if the Minister could say something about it. How will we be able to arrive at a position where, as far as possible, there is consistency of decision-making and practice around the country among responsible officers? Indeed, how will we know whether there is consistency? How will we know whether a responsible officer has in some way fallen short or abused his or her position? Amendment No. 143 attempts to get to that particular issue.

Inevitable tensions will arise in the role of a responsible officer where that person is also the medical director. Acute trusts have performance targets. There are often shortages of doctors in key specialties. There is always an imperative to maintain patient throughput and to keep the doctors that one has in post working. At the same time there is a need to appraise and revalidate doctors fairly and to investigate adverse incidents fairly. How will a responsible officer, as part of the organisation’s management team, be able to balance those opposing pulls? Will he or she not have an inbuilt conflict of interest, and how will that conflict be reconciled? How do you ask someone to be loyal to an employer while at the same time being fair to professionals and patients by upholding professional standards in a scrupulous way? That will not be at all easy and I do not envy anyone faced with such an onerous burden.

My other question relates to doctors who are not employed by an NHS organisation. There are many doctors practising independently in all sorts of environments and capacities—not only GPs, who are the most obvious example, but doctors in industry and commerce, doctors in the Armed Forces, pharmaceutical physicians and other doctors in private practice of all kinds. Who will act as responsible officers for these practitioners, especially in places where there is often no management structure? Will it be a mandatory requirement in PCTs that there should be a medical director, as there is in acute trusts? It would be helpful to have the Minister’s guidance on that as well.

Finally, it would be useful to hear from the Minister how a responsible officer will liaise and interact with the GMC affiliate. The plans for GMC affiliates have changed considerably since they were first announced. We need to be clear how duties and responsibilities will be divided between responsible officers and affiliates.

I wonder whether this idea would benefit from being piloted in certain locations before being rolled out universally. Does the Minister think that that might be sensible and are there any examples from abroad of the model from which lessons can be

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learnt? Does she think that the concept of having one responsible officer in an organisation is consistent with the proposal, which I have seen advanced, that the responsible officer could in practice delegate his or her responsibilities to a deputy? It seems to me that the idea of a deputy somewhat cuts across the notion of individual accountability, but the idea has been put forward as a way of spreading what will undoubtedly be a considerable workload on the shoulders of the responsible officer. At the very least, that workload will require administrative support. Will it be up to individual trusts to make their own arrangements to provide such support? I hope that the Minister can shed some light on these complex matters.

Baroness Cumberlege: As I understand it, these new sections codify and make statutory the position of the medical director that exists in many trusts. However, as my noble friend said, the Bill extends the role to PCTs and the private and independent sector. The responsible officer role is intended to protect patients, improve systems and act early to support and remediate doctors when concerns are raised about their practice. This appears to be in line with the wish of the noble Lord, Lord Darzi, that health services should be clinician-led, a concept that I warmly welcome. In the past, many members of the medical profession have shied away from taking the responsibility of managing and running the organisations in which they work. I do not find that surprising, because their education is about combating illness and restoring health. It is only when doctors achieve a consultant post that they are suddenly thrown into the maelstrom that is management. Without preparation, it is hardly surprising that they shy away.

My company is designing and delivering courses on leadership for SpRs and trainee GPs. Our participants are bright, keen, wonderful young people, but they are breathtakingly naive when it comes to understanding the organisation in which they work. They express anger that, after working in the service for eight years, they have never met a member of the top team and have no idea what the chief executive or the director of finance does. They have no idea what a PCT is, yet these are the people who will shortly be in charge of a clinical department. So what do they do? They ask the previous incumbent, who says, “Well, this is the way I have always done it”, so we get no change.

Huge efforts are being made by deaneries, strategic health authorities and the department to ensure that the next generation of consultants, senior partners in general practice and public health doctors have the skills and support necessary to ensure that we have successful leaders, not only in clinical fields but in the organisations in which they work. The responsible officer will be a critical part of that leadership and should not only put into place and maintain the clinical governance systems but ensure that all doctors are providing a safe, high-quality service. As I understand it, he or she will also ensure that appropriate training and professional development are available to doctors. Perhaps the Minister can tell me if that is part of the role.

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Will this person identify issues at the earliest possible stage and help doctors to get on track before problems escalate? What mechanisms are available to an NHS organisation whose responsible officer shuns the difficult decisions and fails to be tough and to call his colleagues to account? I mention this because I have often heard of medical directors who have tried to take tough decisions but have been urged by their colleagues to be gentle. I have heard the phrase, “Just have a word with him or her in the car park”. However, car park conversations do not work and the responsible officer will have to have the bottle to use the organisation’s HR policies; in some cases, those exempt doctors, which I do not think is right.

It is essential for the responsible officer to be a part of the senior clinical leadership of the healthcare organisation and a member of the management board. That will make it easier to take appropriate action where problems arise that may be caused by dysfunctional systems rather than the performance of individual doctors. For example, I have been told of a case where the hospital introduced single-use instruments, which resulted in a number of post-operative complications. It transpired that the problem was not related to the performance of the doctors but was to do with the design of the instruments. In other cases, the problem might turn out to involve relations between several members of the clinical team rather than one individual. In such cases, a responsible officer who is a senior clinical leader in the organisation must be in the position to take whatever action is needed to protect patients and to support and help the individuals involved.

I share the concerns of my noble friend about consistency, but I suspect that organisations are so different that they will probably want to have different systems. Let us take as an example the acute trust in Leeds, which is on two sites and may have 2,000 doctors. One would expect perhaps to have more than one responsible officer in that trust. Clearly, as my noble friend said, it is important that accountability is clearly defined.

I take the point made by the noble Baroness, Lady Finlay, about GMC affiliates. This seems to be a moveable feast. We are never quite sure how that whole concept is going to relate to responsible officers. I should be grateful if the Minister could tell us a bit more about that.

Baroness Tonge: I do not want to say much on this issue, as it really has all been said; it has been put so elegantly by the three speakers that I would not attempt to emulate them. I hope that the Government will take on board the real unease that exists about this concept of responsible officers. Anyone in the Department of Health who has worked as a clinician in a trust, as they are now, or in another organisation will know of the difficulties, the jealousies and the backbiting; they will know how clinicians complain all the time that people get extra money and extra awards for doing things that are not clinical. This is another opportunity to take a clinician away from his work and give him a whole load of responsibility that, as has been elegantly pointed out, he will not have the training for. I shall not say any more on that, as it has all been said.

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I have talked to lots of my colleagues, some of whom are still practising and some of whom are retired. They are horrified by the concept of responsible officers. They do not see how it will work. I have heard phrases such as “management creep” bandied around. I have been asked what the merit award will be, or whatever the modern equivalent is. People have said, “How much will you get for that, then?”. They have said, “We will be left to do the clinical work and the out-patients and to deal with all the work while he prances around as a responsible officer”. Doctors working together are often very unkind to one another. I think that we should think hard before we proceed along this route.

5.30 pm

Baroness Thornton: Amendment No. 142 would place a requirement in the Bill for responsible officers to be registered with the General Medical Council. Let me be clear from the start: I agree with the principle of this amendment and I am happy to confirm that the regulations will include a requirement for a responsible officer to be a registered medical practitioner.

Proposed new Section 45A(5)(a) of the Medical Act 1983 provides the power for regulations to set out the requirements for a person to be appointed as a responsible officer. An expert group is advising on what those additional requirements will be. In my view, in order to provide greater clarity, the regulations should set out all the conditions that must be met for appointment as a responsible officer and not just some of them. I hope that the noble Baroness, Lady Finlay, will accept my public commitment that her amendment will be reflected in these regulations.

Amendment No. 143 would provide that regulations requiring the appointment of responsible officers may include provision for evaluating their performance in the role. I agree that it is important that we ensure that responsible officers have the ability and capability to carry out their duties and I am glad that this issue has been raised. I can reassure the noble Earl and the noble Baroness, Lady Cumberlege, that responsible officers will already be evaluated, because they will be registered medical practitioners.

The noble Earl asked who the responsible officer’s responsible officer will be. We have been clear that every doctor in the United Kingdom will relate to a responsible officer. We are also clear that responsible officers will have to be registered medical practitioners. Responsible officers will therefore have to relate to a responsible officer. In our view, it would be appropriate for the responsible officer to relate to one in another organisation. Details will be set out in regulations and guidance following advice from the expert working group that is currently sitting.

Under Amendment No. 144, designated bodies would have to provide an individual with an alternative responsible officer if they were requested to do so. If the amendment’s intention is to ensure that a doctor’s career is not damaged unfairly when there is conflict of a personal nature between the doctor and the responsible officer, I fully agree with the principle. However, the amendment as drafted would enable individuals to change responsible officers every time

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they thought that they might be in trouble. At the very least, this could result in delays in handling cases and, at worst, it could result in a failure to protect patients in cases where the alternative responsible officer was less familiar with the overall context. We should perhaps look instead to the document Maintaining High Professional Standards in the Modern NHS, which already provides guidance for the NHS on handling cases of poor performance for employed doctors.

I think that Amendments Nos. 147 and 148 are intended to ensure that, when a concern is raised about a doctor, any underlying issues are identified and addressed, not just those that directly relate to disciplinary action. Amendment No. 147 would make responsible officers responsible for ensuring that action was taken when a system failure was identified. I have some sympathy with this proposal. It is certainly our intention that, where investigation of a concern about a doctor’s performance reveals an underlying problem with the system, the responsible officer should have a role in ensuring that appropriate action is taken. That is why we have said that the responsible officer should be a senior doctor, either at board level or reporting directly to a board member. That will ensure that he or she is senior enough to do something about any system failure.

However, this amendment would require the responsible officer to ensure that appropriate action was taken in every case of system failure, whether it stemmed from concern over individual doctors or not. Although in some cases healthcare organisations may wish to combine the roles of responsible officer with wider clinical governance responsibilities, we believe that that is a decision for individual healthcare organisations rather than for the Department of Health.

Amendment No. 148 would ensure that appropriate action under Clause 115(1)(c) was timely and included support and consideration of training and remediation. I can assure the noble Baroness, Lady Finlay, that, although this is not set out in the Bill, we will set out in guidance that responsible officers will have to ensure that support is provided to help doctors to undertake their role efficiently and effectively.

The Earl of Onslow: I heard the Minister say that the amendment would make responsible officers investigate every system failure. Can she tell me when responsible officers should not investigate system failures?

Baroness Thornton: It may be appropriate that somebody else in the organisation does so.

The Earl of Onslow: If the man is responsible for running something, why should it be the responsibility of somebody else if a mistake has been made? Surely it is up to him as the responsible man.

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