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I listened very carefully to what the noble Lord, Lord Goodhart, said about the fact that there were distinctions to be made between the sorts of regulations that might come forward. The amendment of the noble Lord, Lord Jenkin, would provide for all CIL regulations to be subject to the affirmative resolution of that House. However, in its 13th report the DPRRC said,

which seems to acknowledge implicitly that the other House might well do so for at least some of Part 11.

Noble Lords have already made it clear that I cannot speak for the other place: I cannot determine what the other place does. If the noble Lord’s amendment is accepted by this House, the other place will take a view on whether its financial privilege has been infringed, and whether it wishes to waive it. It will only do so once the Bill is again before it.

I have listened hard, both in Committee and today. I have taken full note of the comments made by the Delegated Powers and Regulatory Reform Committee. We are still of the view that it is a financial matter and that it is appropriate that the regulation-making procedure should remain with the House of Commons.

Lord Jenkin of Roding: My Lords, that is an exceedingly disappointing reply. The noble Baroness has made no attempt to answer the point that was made in an intervention by the noble Lord, Lord Goodhart. How can the other place decide whether to waive its privilege if we do not put this amendment into the Bill? It will simply go back and that will be that. I am determined to test the opinion of the House.

7.14 pm

On Question, Whether the said amendment (No. 130) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 96.

Division No. 3


Addington, L.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Best, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Carnegy of Lour, B.
Cathcart, E.
Chorley, L.
Colville of Culross, V.
Colwyn, L.
Cotter, L.
Craigavon, V.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Forsyth of Drumlean, L.
Garel-Jones, L.
Glasgow, E.
Glenarthur, L.
Goodhart, L.
Greaves, L.
Hamwee, B.

12 Nov 2008 : Column 717

Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L. [Teller]
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laird, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
McColl of Dulwich, L.
Mar, C.
Mar and Kellie, E.
Mawson, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Newby, L.
Newton of Braintree, L.
Norton of Louth, L.
O'Cathain, B.
Pearson of Rannoch, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L. [Teller]
Roper, L.
Ryder of Wensum, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Shaw of Northstead, L.
Shutt of Greetland, L.
Slynn of Hadley, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Winchester, B.
Tyler, L.
Ullswater, V.
Valentine, B.
Verma, B.
Waddington, L.
Walpole, L.
Watson of Richmond, L.
Wilcox, B.
Woolmer of Leeds, L.


Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Bew, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blood, B.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grocott, L.
Harrison, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Newcastle, Bp.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Thornton, B.

12 Nov 2008 : Column 718

Tomlinson, L.
Tunnicliffe, L.
Uddin, B.
Whitaker, B.
Whitty, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.25 pm

Lord Patel of Bradford: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that Report begin again not before 8.25 pm.

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

General Medical Council (Constitution) Order 2008

7.25 pm

Baroness Finlay of Llandaff rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 6 October, be annulled (SI 2008/2554).

The noble Baroness said: My Lords, noble Lords may ask why I have put down this Prayer against a change that is done and dusted. The GMC board is already slimmed down, appointments are made, and the regulation that sets out a proposed constitution for the General Medical Council is already in action. Earlier, we debated an order on specialist registration, which I supported.

In essence, the order provides details of the composition of the council. From 1 January 2009, the GMC will have a revised constitution consisting of 24 members; 12 lay and 12 professional. All will be appointed by the Privy Council, but in practice the function will be delegated to the Appointments Commission. This signals the end of self-regulation. The noble Baroness, Lady Gardner of Parkes, who apologises that she is unable to be in her place tonight, sent out a clarion call during the proceedings on the Health and Social Care Bill, when she tabled an amendment on the General Dental Council. Medicine failed to heed her warnings at the time. That is precisely why I have laid this Prayer.

This change is hugely controversial within the medical profession. The president of the Royal College of Surgeons is shocked by the full implications of the order. The president of the Royal College of Physicians feels that the profession acquiesced too easily in the wake of Shipman. Of course, we all know that none of the changes will ever detect another Shipman. The changes have all been put in place, and the list of appointees has been on the GMC website since October. Now, we are effectively rubber stamping the details. I am not convinced that this is the right way to approach something that will fundamentally alter the relationship of the profession with its regulatory body.

Let me briefly run through the background. The Government announced their intention to change the way in which doctors and other healthcare professionals in the UK are regulated in February 2007 in the White Paper Trust, Assurance and SafetyThe Regulation of

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Health Professionals in the 21st Century
. Following the White Paper, the Health and Social Care Bill was introduced on 15 November 2007, and it included provisions to amend the legislation governing doctors and the other health regulatory bodies. The Bill gained Royal Assent on 21 July.

Concern was expressed at the time by parts of the medical profession that the proposed changes, taken as a whole, would lead to a loss of professionally-led medical regulation. That has two adverse consequences for patient care. It potentially compromises doctors in their role of speaking out for their patients, and it furthers risk-averse behaviour, which promotes defensive practice. Defensive practice is not necessarily practice that is in the best interests of the patient, but it is defensive for the doctor.

The NHS is a state-owned monopoly employer. With an appointed regulatory body, doctors could feel that their professionalism is compromised. Clinical judgment requires a synthesis of medical knowledge with the specific issues for an individual patient, aiming to achieve the best treatment for the individual patient. If professionalism is diminished and the profession is demoralised, there are consequent risks to patient care. The vast majority of doctors perform well and safely and acknowledge that it is imperative that patients are protected from the small number of cases of unsafe doctors. Therefore, any measures which promote excellence in medical practice and help to reduce instances of poor standards, negligence, or, sadly, criminality, among doctors must be supported.

I acknowledge that some improvements to the regulation of the medical profession were needed. However, during the passage of the then Health and Social Care Bill, the British Medical Association voiced doctors’ concerns that any reform must be workable in practice and maintain a system in which both the public and doctors can have confidence that fairness and justice will be delivered.

The greatest protection for the public is to have a system where doctors feel able to admit to faults or failings in themselves and colleagues, confident in the knowledge that these will be dealt with in a fair, sensitive and supportive manner. The trouble is that the profession, especially the juniors, feels demoralised. Some juniors have described the GMC to me as being just there to “catch you out however hard you try to do your best”.

Over recent years, the GMC has taken action to amend its constitution, reducing the size of the council. Lay members have developed a much greater involvement in its activities and the proportion of lay members has increased, improving the GMC’s accountability to the public and helping the council operate more strategically.

Reducing the size of the council to 24 certainly makes it more manageable but only 12 of its members are medical. This means that it is no longer a council for professionally led regulation, which has undermined the profession’s confidence in its regulator. To help retain the profession’s confidence in the regulator, should not the council be chaired by a doctor? If the chair is lay, at least it should be mandatory that the vice-chair is medical—a model to be found in the Bar Standards Board. Why have such provisions not been

12 Nov 2008 : Column 720

incorporated in the order? Furthermore, why do the medical members of the council have to be appointed by the Privy Council? Why are they not elected by the medical profession from a long list produced by the Appointments Commission? Such a process might ensure the credibility of the regulator with the profession that it regulates.

To be quorate, only 14 members need to be present. There is no stipulation that at least seven of them must be medical. Why not? The council could have 12 lay and two tame medics there and could theoretically make momentous decisions that will affect the viability of the professionals. I am sure the Minister will try to reassure me about the type of decision that they will make, but in reality one may hope for the best but must plan for the worst.

I am not simply resisting change for the sake of it, but want to record the current demoralisation of the profession. Medical practice is becoming increasingly complex, with increasingly complex science underpinning best practice. These complexities must be understood by the regulator.

The Minister has the opportunity tonight to put some assurances on the record because they are important for the profession as a whole. In particular, I hope that she will be able to assure me that the changes to the constitution will not lead to undue Department of Health or government influence over the way in which the GMC works.

I would also appreciate an assurance that doctors will not be compromised in their ability to use their clinical independence to get the best treatment for their individual patients, even if it means speaking out, taking risks and working outside the guidelines or even sometimes beyond the boundaries of a protocol.

As Dr Buckman, the chairman of the BMA's council working party on the GMC, said:

“These far reaching changes have effectively amounted to the end of professionally led regulation. The main objectives of any regulatory system are to protect patients and manage doctors' performance. Doctors want confidence in their regulator ... this confidence will be undermined".

I look forward to hearing the Minister's reply on these issues and beg to move.

Moved, That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 6 October, be annulled (SI 2008/2554).—(Baroness Finlay of Llandaff.)

Lord McColl of Dulwich: My Lords, I suspect that few people really know how the medical profession has tried to regulate itself over the years. One of the best ways is to meet once a week to discuss all complications and deaths. These meetings are extremely useful. The key is to have a chairman who is senior and when some junior member of the staff confesses to some complication, the senior guy says that we all make mistakes and then recounts his own mistakes. People are then disarmed and compelled to be honest. That is the way to get to the bottom of what is going on. It becomes rather like the general confession and just as therapeutic.

In a debate in your Lordships’ House, there was a discussion about some mistakes there had been in the Department of Health—I am sure very few. I suggested

12 Nov 2008 : Column 721

to the noble Lord, Lord Darzi, that, as we have both conducted these meetings, perhaps the Department of Health might like to have a weekly meeting to discuss all their mistakes of the previous week—no deaths of course. That idea went down like a lead balloon.

I agree with the noble Baroness on this business of the chairman. It looks like he could be lay or medical, but if he is the former, the balance is shifted and is no longer 50:50. The Government might suggest to the new GMC that there be a vice-chairman. If the chairman is lay, the vice-chairman could be medical and that would balance things up. I gather that is what obtains with the barristers. The chairman of their governing committee is lay, but they always have a professional barrister vice-chair. That might be one way out of it.

Regarding the quorum, I think it is 14, which means that there could be just two doctors present and 12 lay people. That might not be a very satisfactory state of affairs. After all, medicine is becoming much more complicated and technical. One does need at least 50 per cent of the people there knowing something about the subject in some detail. I wonder whether the Government would suggest to the GMC or find some arrangement whereby that situation could be corrected. We are not trying to scupper the whole thing at this stage, but it would be well worth while if those few recommendations could be implemented.

Baroness Barker: My Lords, I thank the noble Baroness, Lady Finlay, for introducing her Motion. It gives me a chance to come out. I belong to a minority in the population. The vast majority of people take one look at a governing document or instrument and their eyes glaze over. I have an affliction. I am in that small minority who look at a governing document and their eyes light up. It is all to do with my professional background, working with voluntary organisations. I was absolutely delighted to sit and look at this. I have to say that I listened with great care to the arguments made by both the noble Baroness and the noble Lord, Lord McColl. It would be tempting to go back through arguments which have raged in this House since the Shipman case and through the then Health and Social Care Bill. The time has now come to accept that those arguments have been had and decisions have been taken and it is time to move on. Central to the reform of the GMC is that it should become an altogether different body, which will, I hope, continue to command the respect of professionals but will be held in greater respect by lay members of the public. That would enable it to move forward in a world in which its job of regulating doctors and medical practice is changing, as has been noted.

In that spirit I want to make a couple of points and ask a couple of questions. First, as regards the size of the GMC council, it is now accepted practice in the business world and that of charities that if you put more than 20 people into a room, you will never get sensible discussion or sensible decision-making. Therefore, reducing the size of the council is regarded—there is evidence to support this view—as an aid to better decision-making. However, we should remember that we are talking about a model of accountability. The GMC council’s primary purpose is to be an accountable

12 Nov 2008 : Column 722

body. How it goes about fulfilling its duties in respect of governance and oversight is not a matter that should be addressed in the document we are discussing because there is an infinite variety of ways in which any professional body—of which the GMC is one—can do that. Those matters are not set out in the document, nor confined to the parameters set out in it. My understanding is that above and beyond these legal minima, the GMC conducts a great deal of its business at its own discretion. We should not become confused about those two matters. I believe that the bulk of the work will be carried out not by the council but rather by professional bodies. However, the council remains the accountable body.

In the presence of esteemed people such as the noble Baroness, Lady Finlay, and the noble Lord, Lord McColl, I realise that it is audacious to say that doctors do not always chair meetings brilliantly. We are talking about a key role in terms of making a body work. Perhaps a doctor should undertake this role. However, some eminent lay people who undertake roles in professional bodies are extremely well thought of and command the respect of the people whom they oversee. I think that it would be in the GMC’s interest to have the flexibility to appoint such people if it needed to do so. I hope that the Minister will confirm that the GMC council would not be prevented from establishing its own standing orders to enable it to set out in greater detail ways in which it might conduct its business.

I hope that the Minister will comment on my next point to put it beyond doubt. I think that, taken together, Articles 5(m) and (n) and 6(e)—the anorak in me is coming out—are intended to ensure that no registrant should ever have been subject to challenge anywhere in the world as regards their fitness to practise, and if that were not the case they would not be able to be a member of the council. It would be extraordinarily helpful if she would confirm that that is the intent of those sub-paragraphs.

The GMC is about to enter a new era in its history. None of us yet knows how successful that will be. Parliament and the profession will have to watch that matter with great care. It will be interesting to see how it is evaluated, by whom and when. However, as far as this goes as a very basic founding document, it should serve that process reasonably well.

7.45 pm

Lord Rea: My Lords, I apologise to my noble friend Lady Finlay as the dinner-hour business started very promptly this evening and I missed the first few minutes of her speech. However, I know the gist of her thinking and have some sympathy with it because this order appears at least to remove the long-treasured self-regulation of the medical profession. I shall be very interested to hear my noble friend’s response. I also support the point made by my noble surgical friend Lord McColl about the deputy chairman. However, we had plenty of opportunity to debate the legislation on which this order is based, the Health and Social Care Act and the miscellaneous amendments to the HCAP order—I summarise that as it is too long to spell out. However, I think that we have reached a good solution. We should remember that the chairman

12 Nov 2008 : Column 723

of the General Medical Council, Sir Graeme Catto, has been very much involved in the processes which have led to this legislation. I respect him greatly and he is held in high regard by the profession. Although we may have lost the control seat, as a profession we may gain from our disciplinary body being seen to be broadly spread and representing the whole community.

Baroness Butler-Sloss: My Lords, I apologise for not being present at the beginning of the debate as I had intended. I support what the noble Lord, Lord McColl, said. Over the past three years, the Bar Standards Board has worked effectively with a lay chairman but with a QC as its vice-chairman. Having a lay chairman has proved extremely useful for many bodies. However, that needs to be balanced by having sufficient specialised members on the board about which we are speaking. I happen to be chairman of the panel that appoints Queen’s Counsel, but only because the lay chairman had to retire unexpectedly. In future there will be a lay chairman of the Queen’s Counsel panel, but its members comprise more lawyers than lay men. Having a deputy chairman who is a member of the medical profession would be a very useful adjunct to this new General Medical Council.

Baroness Thornton: My Lords, I thank the noble Baroness, Lady Finlay, for introducing this debate on the merits of the General Medical Council (Constitution) Order which was laid before the House in October this year.

The order is part of a programme of reform and modernisation of the regulation of the healthcare professions, which the Government are taking forward in consultation with the health professions regulators. Noble Lords will recall previous debates in which this programme, and especially the governance arrangements for the regulatory bodies, have been discussed.

We all agree that the healthcare professions regulators must be independent and impartial in their actions if they are to protect the public interest, enhance professional standards, and deal with poor performance effectively. Like the noble Baroness, Lady Barker, I do not intend to rehearse the arguments that we have heard previously because the House is very familiar with them. However, there has been a perception that regulators have not always acted in patients’ best interests. Their perceived dependence on, or attachment to, vested interests has weakened or threatened confidence in their actions. That is the background to this programme of reform.

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