HL Deb 24 October 1995 vol 566 cc1080-6

9.31 p.m.

Report received.

Clause 1 [Professional performance]:

Lord Rea moved Amendment No. 1:

Page 3, line 27, at end insert— ("( ) Where in the course of inquiring into the case of a practitioner, it appears to the Committee on Professional Performance that his fitness to practise may be seriously impaired by reason of his physical or mental condition, the Committee may refer that question to the Health Committee for determination.".").

The noble Lord said: My Lords, in moving Amendment No. 1 I should like to speak also to Amendments Nos. 2 and 3.

I put down the amendments at the suggestion of my honourable friend Nigel Spearing MP who, as the noble Baroness is aware, has been since the time of his Private Member's Bill of 1984 one of the prime movers in the process which has finally taken shape in the Bill before the House today.

The three amendments provide for the transfer of a case under consideration from one to another of the statutory committees of the General Medical Council without having to go back to square one and allowing the doctor to continue to practise in the interim if it is felt by either the Professional Conduct Committee, the Health 'Committee or the new Committee on Professional Performance that a particular case would be more suitable for consideration by one of the other two committees.

Since I put down the amendments it has been drawn to my attention that paragraph 19 of the schedule to the Bill as it stands permits the transfer of cases from the Professional Conduct Committee, the Assessment Referral Committee or the Committee on Professional Performance to the Health Committee. However, as far as I can see, the Bill does not contain the provisions in my Amendments Nos. 2 or 3 which would allow referral from the Committee on Professional Performance to the more serious Professional Conduct Committee or, vice versa, from the Professional Conduct Committee downwards to the Committee on Professional Performance.

The case of Dr. Oliver Archer, whose patient Alfie Turner of Canning Town died in 1982 from meningitis, could well have been dealt with under Amendment No. 3. As it was, Dr. Archer was cleared of serious professional misconduct although he was fined for negligence. However, he was then allowed to continue practising. Only two years later, after a further incident, he was found unfit to practise after a referral to the Health Committee of the General Medical Council. On the face of it, although he was found unfit on health grounds, his actions in the first case would probably have been regarded as a serious failure of professional performance, if such an offence had then existed. This obviously dangerous and incompetent doctor was able to continue practising for two full years after the first incident.

It would not be appropriate for me to press the amendments tonight. I concede that Amendment No. 1 is not necessary. However, I shall be interested to hear the noble Baroness's comments on Amendments Nos. 2 and 3. It is clearly possible, in fact highly probable, that Dr. Archer was not the only doctor to have been cleared by the Professional Conduct Committee but whose standard of work was still seriously below an acceptable professional standard.

Amendment No. 3 allows the transfer of such a case directly to the new Committee on Professional Performance and does not allow such a doctor, who could well be a danger to the public, to return to practise.

Similarly, under Amendment No. 2, if during a hearing the Committee on Professional Performance—under the provisions of the Bill that committee can only suspend a doctor and not strike him off the register—were to find out during the hearing, for example, about conduct which was not initially reported but which it felt was so serious that the doctor should be removed from the register, it could immediately refer the doctor to the Committee on Professional Conduct which has the necessary powers to remove him.

As drafted, I do not think that the Bill allows the two forms of transfer as outlined in Amendments Nos. 2 and 3. However, I shall stand corrected if the noble Baroness can show me that it does. I beg to move.

Baroness Robson of Kiddington

My Lords, I support the spirit of the noble Lord's amendment, in particular Amendments Nos. 2 and 3.

On Amendment No. 3, if a person is found not guilty of serious professional misconduct, and is therefore allowed to return to practise, as the noble Lord demonstrated, that can cause great danger to the public. I hope the fact that the Bill sets up the Committee on Professional Performance means that that referral would be automatic. I look forward to hearing what the noble Baroness has to say.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

My Lords, each of the fitness to practise procedures starts with a screening stage and may go on to committee stages if necessary. Transfers may occur at any stage, but it is only transfers to the Health Committee that we considered needed to be specified in primary legislation. That is already contained in the Bill—both transfers from the Assessment Referral Committee and the Committee on Professional Performance to the Health Committee. As the noble Lord, Lord Rea, acknowledged, it is in paragraph 19 of the schedule. In our view the amendment would serve only to duplicate the change to the Medical Act 1983 already made by the Bill.

With regard to the second amendment, in earlier proceedings on the Bill in another place, it was queried why there were no other transfers between committees in the Bill. The reason is that the Professional Conduct Committee and the Committee on Professional Performance will consider very different kinds of evidence. In conduct cases the committee considers evidence from witnesses on a basis akin to the criminal court. In performance cases, the committee will consider the results of an objective assessment relevant to the doctor's specialty. It will not therefore be appropriate to transfer cases directly from the Professional Conduct Committee to the Committee on Professional Performance or vice versa. The transfer will be to the relevant screener to initiate the collection of appropriate evidence. Transfers from a committee to screeners do not require a specific power in the Bill. The transfers will be dealt with in the GMC's rules of procedure. These rules, when made, are subject to approval by the Privy Council in the form of a statutory instrument and will be subject to the negative resolution procedures in either House of Parliament.

With regard to the third amendment, it is of a rather different order in that the amendment introduces a new clause which deals with a possible case where, as the noble Lord said, a doctor has been through the conduct proceedings, but has been found not guilty of serious professional misconduct, though the evidence throws doubt on the doctor's general performance. The GMC has a number of different routes open to handle allegations it receives about a doctor. The screeners will be very skilled in sifting the evidence and deciding which route is most appropriate. But sometimes, as a case proceeds and new evidence emerges, it will be apparent that another route might have been better.

Where there is prima facie evidence of misconduct, it must be right that the case is dealt with by the Professional Conduct Committee. But where the evidence, when carefully tested by due legal process, does not support a finding of serious professional misconduct, then that should be the outcome of that case. The committee must be fair to the doctor. It may nevertheless suspect that there is still a problem in the doctor's standard of professional performance. It is important to emphasise that it can have merely a suspicion—the evidence presented about one or more acts of possible professional misconduct is not the same as the evidence needed in an assessment of overall performance. The most the Professional Conduct Committee could do, in fairness, is to suggest that the performance screener should consider whether the doctor should be invited to undergo assessment under the professional performance procedures.

The performance screener would have available all the evidence already gathered by the GMC and the statements made by the doctor and any witnesses during the Professional Conduct Committee's hearing. We can be in no doubt that the screener would consider very seriously whether assessment would be in the doctor's interests and that of his patients. In an appropriate case, proceedings could begin quickly and would continue under the normal procedures set out in the Bill. The GMC would not have to wait for a new complaint to be made. It can, if you like, act on its own information.

I therefore ask your Lordships to reject the new clause. It suggests that the Professional Conduct Committee should have available a new type of Finding—"suspicion" of seriously deficient conduct—in cases where it has failed to find, in the evidence brought before it, guilt of serious professional misconduct. We do not consider it helpful to create a further category of offence. Nevertheless I appreciate the valid point which the noble Lord is making, endorsed in spirit by the noble Baroness, that sometimes further investigation is warranted of the professional performance of a doctor who has been found not guilty of serious professional misconduct. The GMC will have, under this Bill, all the powers it needs to initiate a fair assessment of such a doctor's performance.

We have agreed with the GMC that the transfers between the conduct and performance procedures should be covered in rules. The GMC has given me its assurance that the rules it makes will enable such transfers to take place. With these reassurances, I hope that the noble Lord will feel able to withdraw his amendments.

Baroness Robson of Kiddington

My Lords, perhaps we may take the case where someone has been found not guilty of professional misconduct but there is a suspicion that he is deficient in his performance and the screener examines the evidence that has been produced in the first trial. Does that mean that for that time he is allowed to go back and continue to practise?

Baroness Cumberlege

No, my Lords, as I understand it the process is still in being and therefore the doctor would be suspended.

9.45 p.m

Lord Rea

My Lords, I thank the noble Baroness for replying so fully to my- amendments, especially Amendment No. 3. However, I am not absolutely sure that she has completely put my mind at rest. I shall read her remarks very carefully in Hansard and have further discussions about these matters, possibly with the noble Baroness herself, before Third Reading. For the moment, I beg leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Baroness Cumberlege moved Amendment No. 4:

Page 12, leave out from beginning of line 26 to end of line 30 on page 13 and insert—

("National Health Service Act 1977

In section 29 of the National Health Service Act 1977 (arrangements and regulations for general medical services)—

  1. (a) in subsection (8)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and
  2. (b) after subsection (8) there shall be added—

"(9) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

  1. (a) under section 36A of the Medical Act 1983 (professional performance),
  2. (b) under section 38(1) of that Act (order for immediate suspension), or
  3. (c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),
the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension.".

National Health Service (Scotland) Act 1978

In section 19 of the National Health Service (Scotland) Act 1978 (arrangements and regulations for general medical services)—

  1. (a) in subsection (7)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and
  2. (b) after subsection (7) there shall be added—

"(7A) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

  1. (a) under section 36A of the Medical Act 1983 (professional performance),
  2. (b) under section 38(1) of that Act (order for immediate suspension), or
  3. (c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),
the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension."

Health and Personal Social Services (Northern Ireland) Order 1972

In Article 56 of the Health and Personal Social Services (Northern Ireland) Order 1972 (arrangements and regulations for general medical services)—

  1. (a) in paragraph (4C)(c), for the words "of the Preliminary Proceedings Committee of the Council under section 42(3)(b)" there shall be substituted the words "under section 42"; and
  2. (b) after paragraph (4C) there shall be added—

"(4D) Where the registration of a medical practitioner in the register of medical practitioners is suspended by a direction of the Committee on Professional Performance of the General Medical Council—

  1. (a) under section 36A of the Medical Act 1983 (professional performance),
  2. (b) under section 38(1) of that Act (order for immediate suspension), or
  3. (c) under rules made by virtue of paragraph 5A(3) of Schedule 4 to that Act (procedure of committees),

the suspension shall not, except in so far as is provided by or determined in accordance with regulations under subsection (2) above, terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during the suspension.".")

The noble Baroness said: My Lords, the Bill already makes provision to ensure that where a doctor has been suspended by the Committee on Professional Performance he will not automatically lose his livelihood. For GPs the Bill provides in paragraphs 28 to 30 of the schedule for the appropriate amendments to be made to the 1977 NHS Act, the 1978 NHS (Scotland) Act and the 1972 Health and Personal Social Services (Northern Ireland) Order.

The regulations governing GPs need to explain the limits on this protection. The amendment that I have brought forward seeks to do this. The amendment replaces paragraphs 28 to 30 of the schedule to the Bill and is different to the existing paragraphs in two respects.

First, we have created a separate subsection in the existing Acts and order so that they deal solely with the performance procedures. The second change is to qualify the sentence which says that the suspension shall not terminate the arrangements between the GP and the health authority by including the phrase, except in so far as is provided by or determined in accordance with regulations".

Regulation 7(2) of The National Health Service (General Medical Services) Regulations 1992 states that a doctor who has not provided services personally for six months may be removed from the medical list. But, any time that a doctor has spent suspended by the health committee must be disregarded for the purpose of this regulation. This exclusion is to ensure that a GP's livelihood is not threatened when poor performance has occurred due to ill health which could last for a considerable time. A doctor who is suspended cannot, of course, provide medical services personally, but would have to arrange locum cover.

We do not want a GP who is suspended by the Committee on Professional Performance to be removed from the medical list immediately and automatically. However, where a health authority considers it is in the interests of the patients on the doctor's list, it is important that it can remove that GP from its medical list after a period of time has elapsed. We propose that the regulations should allow the health authority to consider delisting the doctor six months after his or her suspension. We have therefore sought to reach a balance between protecting the livelihood of the GP with the responsibility of the health authority to ensure that the interests of the patients in its area are protected. I beg to move.

Lord Rea

My Lords, these Benches and the British Medical Association are very happy to accept this amendment. There is just one query in relation to it. In the case of general practitioners, will arrangements be made through the General Medical Services Committee of the BMA as to the details of how the finding of a locum is to be organised? It is possible, for instance, that the health of the doctor concerned may be so bad that he is not in a position to arrange this for himself. It could be that regulations will need to be updated and changed as a result of this amendment to the Bill.

Baroness Cumberlege

My Lords, I am sure that it is in everybody's interest that a locum should be supplied as quickly as possible. I am not sure about the details and whether the BMA would be involved or whether we should seek other organisations, or indeed rely on the present procedures that are in place. Perhaps I may write to the noble Lord on this matter. If he is dissatisfied, I am sure that he will bring it up at Third Reading.

With the leave of the House, I should like to correct something I said in the debate on the earlier amendment. The noble Baroness, Lady Robson of Kiddington, asked me whether a doctor would be suspended during the course of this process between two committees when that doctor had been found not guilty by the conduct committee but had yet to be referred to the screener. I understand that if the doctor has been found not guilty of serious professional misconduct he will not be suspended. If the papers are referred to the performance screener, everything will depend on the outcome of that assessment.

On Question, amendment agreed to.