Clause 15.—(PROCEDURE OF MEDICAL DISCIPLINARY COMMITTEE.) (Hansard, 14 July 1950)

§ Lieut.-Colonel Elliot
I beg to move, in page 8, line 40, after "of" to insert: exercising the functions assigned to it under this Act, the Committee shall appoint a subcommittee of its members to be called the Penal Cases Sub-committee, to investigate each complaint made to, or information received by, the Committee, and where the sub-committee are satisfied that a prima facie case for inquiry has been established they shall refer the matter to adjudication by the Committee, but where they are not so satisfied no further action shall be taken in regard to such complaint or information; and the Committee shall make arrangements for securing that no member of the Committee shall attend for the hearing of any case who has taken part in the proceedings before the Penal Cases Sub-Committee upon that case. (2) For the purpose of. 1807 The Committee has decided in Clause 13 that there should be a medical disciplinary committee and in Clause 14 what its constitution should be. This is a small point of procedure. We suggest that the penal cases committee, which has existed informally since 1894 should become statutory; and secondly, that anyone who has considered the case in the penal cases committee should not sit to hear the case in the disciplinary committee. I trust that the Minister will be able to concede those points to us.

§ Mr. Bevan
This Amendment falls into three parts, and the third is the one we cannot accept. As I understand it, the first is to formalise, by covering with a statutory provision, the preliminary stages of the investigation of complaints. This we accept in principle. The idea is that those who have already taken part in screening have a tendency to prejudge. The second part is to prevent any overlapping in the membership of the penal cases committee and the medical disciplinary committee. It is understood, however, that the president would be allowed to attend both.

§ Lieut.-Colonel Elliot
Oh, yes.

§ Mr. Bevan
The next is to prevent any complaint against the practitioner being investigated unless supported by a formal written complaint or a statutory declaration. This we consider objectionable, because, supposing for example that it was desired to call the attention of the disciplinary committee to charges made against a general practitioner, we would not want to be the complaining—

§ Sir H. Lucas-Tooth
On a point of order. Is the argument to which the right hon. Gentleman is addressing himself not really the argument contained in the next Amendment but one, namely. the Amendment to page 9, line 29, and not this Amendment? I do not think that that particular point is raised in this Amendment.

§ The Deputy-Chairman
This and the two following Amendments, in page 9, line 29, could be taken together.

Dr. Hill
With great respect, there is a different point in the third Amendment.

§ The Deputy-Chairman
That is so.

§ Lieut.-Colonel Elliot
I think the Minister conceded the two points in this Amendment, and the further point is one which we could consider when we get to it. I think we can make progress now, because I take it that the Minister agrees in principle to what we have put forward on this Amendment.

§ Mr. Bevan
Certainly.

§ Lieut.-Colonel Elliot
If that is so, we shall be ready to withdraw the Amendment. He agrees, firstly, to a statutory cover for the informal committee which previously existed in some form or another; and, secondly, to ensuring that a person taking part in the screening, as he called it, should not take part in the judging. If those two points in this Amendment are accepted in principle, I shall be glad to withdraw the Amendment.

§ Dr. Stross
That means that the Minister agrees with paragraph (f) of my Amendment, which is next on the Order Paper, namely, in page 9, line 29, at end, insert: (f) for ensuring that a member of the Disciplinary Committee shall be disqualified for serving in that capacity in any case on which he has already acted as a member of another Standing Committee of the Council, to determine the existence or absence of a prima facie case to warrant a disciplinary inquiry; and (g) for ensuring that an investigation of a complaint against a practitioner shall not proceed in the absence of a formal written complaint except in matters arising out of the findings of a court of law. It also means he does not, apparently, agree to paragraph (g).

§ Mr. Bevan
Not to (g).

§ Dr. Stross
May I have permission to speak on paragraph (g)?

§ The Deputy-Chairman
We had better dispose of the first Amendment first.

§ Lieut.-Colonel Elliot
I beg to ask leave to withdraw the Amendment.

§ Dr. Stross
I do not press paragraph (f) in my Amendment.

§ Sir H. Lucas-Tooth
On a point of order. The Amendment of the hon. Member for Stoke-on-Trent, Central (Dr. Stross) refers to a point raised in the last Amendment and a point raised in the next Amendment to line 29. The Committee has decided we shall not accept 1809 the principle in the first half of this Amendment, and it therefore falls. The second principle is the point which is raised in the Amendment in the name of my right hon. and gallant Friend the Member for Kelvingrove (Lieut.-Colonel Elliot). That Amendment should be moved and seconded, so that the Committee will be in order in discussing the point which the hon. Member for Stoke-on-Trent, Central, wishes to stress.

§ The Deputy-Chairman
That is what I was about to say.

Dr. Hill
I beg to move, in page 9, line 29, at the end, to insert: (f) for securing that no complaint or information investigated by the Penal Cases Sub-Committee, other than a decision in a court of law, shall he referred to the Committee for adjudication unless the circumstances upon which such complaint or information is founded shall have been verified by statutory declaration of the person making the same, or, where such complaint is made or such information submitted by any public department, authority, or other body, by statutory declaration of an officer of such public department, authority, or other body, duly authorised for the purpose. The purpose of this Amendment is to secure that the almost uniform practice of the General Medical Council, that there must be a statement by the complainant, becomes the uniform practice. I say "almost uniform" because there has grown up in the last few years a habit on the part of Government Departments, including the Department of which the right hon. Gentleman is the head, of not complaining but of sending the papers along in the hope that the General Medical Council may do something about it. That has happened. I could give the right hon. Gentleman examples. All I want to secure by this Amendment is that, whether the complainant be an individual, a body or a Government Department, there is a complainant and that there is a formal complaint which goes to the General Medical Council—no more than that.

§ Lieut.-Colonel Elliot
On a point of order. I believe there is no great weight in the remaining business on this Bill, and with hearty co-operation we could still conclude the Bill before the Committee rises. It would have the great advantage that it would enable the Bill to be reprinted and the Report stage Amendments which the Minister has un- 1810 dertaken to make to be submitted in print, and not in manuscript as they might have to be if we had to conclude the Committee stage and then go straight on to the Report stage. We on this side will bind ourselves to secure that cooperation because nothing could be more important than to have the Bill clearly before the House on the Report stage with the Amendments of the Minister set down on the Paper.

§ Mr. Bevan
I am much obliged to the right hon. and gallant Gentleman and I sincerely hope that we shall get the cooperation of everyone in the Committee to accomplish that result.
I must resist this Amendment. I regard it as an exceedingly serious Amendment because what is now suggested is, for example, that the disciplinary tribunal under the National Health Service cannot call the attention of the General Medical Council to evidence placed before it unless it itself makes a complaint. That is an exceedingly dangerous thing to suggest. It means that the disciplinary committee of the General Medical Council would be an arbitrator between the doctor and a Government Department. That, in the first place, puts us in an entirely false position.
It does not follow that the Ministry of Health in this case should come to a conclusion about the doctor at all. It merely means that in the exercise of the administrative duties placed upon him under the health Statutes, the tribunal has brought to light evidence that would appear on the surface to be evidence that the General Medical Council should see, in order to make up its mind whether or not it should consider putting its disciplinary machinery into motion. That would seem to me to be a reasonable protection for the public, but it would not be reasonable to expect the Minister of Health himself to have a preliminary investigation on matters really falling within the jurisdiction of the General Medical Council's disciplinary machinery, and pre-hearing the case. [Interruption.] That is what is involved; that is the whole difficulty.
All we desire to do at the moment is merely to put such information as we have, not privately, secretly or covertly, in the possession of the General Medical Council, but in the ordinary way, saying, 1811 "This is part of the evidence which we had before our tribunal." Having sent it to the General Medical Council, we are finished with it, and it is for the General Medical Council's disciplinary committee itself to decide in the light of the evidence.

§ Dr. Morgan
To hold the baby.

§ Mr. Bevan
I wish that my hon. Friend would try to restrain himself. He has had a pretty good innings today. We are engaged in a very serious matter and he ought to accept at this stage that the Committee do not agree with him. Therefore, the right thing to do is to try to make the remainder of the Bill as workable as possible.
The Amendment now before the Committee is a suggestion that unless any Government Department having doctors directly connected with it, is prepared to make a formal charge against a doctor and to support it, it cannot bring to the notice of the General Medical Council any evidence which it has against a doctor. That, surely, is a situation we cannot possibly accept, and I do not think, that the Committee ought to ask the Government to accept it. Take, for example, the operations of the National Health Service, which calls to light in the ordinary processes of its administration a vast weight of evidence. Ought not that evidence to be made available to the General Medical Council with respect to any medical practitioner if it feels that the G.M.C. ought to know? I should have thought it was an essential condition for protecting the general public.
The public will be listening to this discussion and will be anxious to find out what we are doing for their protection. I think that it is quite unreasonable to ask us to formalise the complaint—indeed, it is not a complaint; no one would be making a complaint against the doctor. We should only be making available certain facts that come to light in the course of the operation of the disciplinary machine of the National Health Service.

Surgeon Lieut.-Commander Bennett
Surely, the Minister is rather cutting across the proceedings of two different bodies for two different purposes. Surely his committee for maintaining the discip- 1812 line of the National Health Service can make such rulings as they think appropriate with regard to the behaviour of a practitioner in the service and, if necessary, bar him from it; but when it is a matter of completely depriving a doctor of the right to practise, the information which has led to the complaint should not merely pass in a sort of backhanded way, without any covering message, to the General Medical Council. If there is a charge which may result in a doctor being prevented from practising altogether, there should be a specific charge laid against the doctor with the evidence to support it, not just a lot of evidence leading nowhere.

§ Mr. Bevan
The National Health Service is concerned with the contractual obligations of a general practitioner and not with his status as a doctor; that is the concern of the General Medical Council. Supposing a complaint has been laid against a general practitioner to an executive council. The local medical committee have examined it, and there is a complaint of negligence—that is to say, it is a complaint falling within the jurisdiction of the disciplinary machinery of the National Health Service.
Suppose in the course of the investigation of that complaint the evidence would appear to show that the doctor had been drunk on several occasions, although his drunkenness had only impinged itself, in the case of the National Health Service, in respect of one complaint of negligence that we are bound to investigate. Does the hon. and gallant Member suggest that there would be anything wrong in sending to the General Medical Council information of alleged drunkenness by that doctor so that it might be investigated? Does he suggest that the Minister of Health should first investigate the charges—there are no charges of drunkenness at that stage—lying against the medical practitioner and then pre-judge the case and make a formal charge against the general practitioner before we can protect the public against the doctor and ask for the charge to be investigated?

Surgeon Lieut.-Commander Bennett
Surely the right hon. Gentleman is rather mistaken in what is required beforehand if he suggests that it is necessary for the 1813 Minister to investigate the case. Surely if the Minister is convinced there is a charge, he should lay a charge to be investigated by the General Medical Council.

§ Mr. Bevan
No, that is the whole difficulty. The Minister ought not to be asked to load the case against the general practitioner by first so formalising the case as to investigate the charge of drunkenness, assemble all the papers and evidence and thus become an accuser of the general practitioner before the General Medical Council. That is surely an entirely wrong procedure.

Surgeon Lieut.-Commander Bennett
Surely it is better that the Minister should be the accuser than the informer.

§ Mr. Bevan
When the hon. and gallant Member is speaking of a Minister, charged by Parliament with the administration of the National Health Service and the public purse, it is a monstrous misuse of language to say that the information he sends to a public body must be brought against the accused person as coming from an informer. I am afraid that the professional occupations of hon. Members are overlaying their duties as Members of Parliament.

Surgeon Lieut.-Commander Bennett
Surely the duty of the General Medical Council is to protect the public; the Minister has to protect the Service, and if he wishes to bring a charge against the doctor of not being a proper doctor, he should make a charge and not more or less anonymously send information.

§ Mr. Linstead
I recognise that we are working against time and it looks very much as though we shall not do what we all hope to do, finish the Committee stage today. I have some sympathy with the point of view expressed by the Minister, because I have had a good many years on a similar professional tribunal.
I can understand his desire to send the papers to the General Medical Council. Take another example, I can understand an ordinary member of the public desiring to make some complaint against a doctor being content merely to send a complaint to the General Medical Council and not being prepared to spend a lot of money following that up, instructing a solicitor and instructing counsel, 1814 maybe, in order to formulate it in proper legal form and pursue it before the disciplinary committee. But, if the Minister is to justify that state of affairs, I think he must tell us in a little more detail, perhaps on the Report stage, what machinery exists within the General Medical Council's office for investigation and for the proper formulation of the complaint eventually in such a way that a doctor will be faced with a properly formulated charge.
I do not think it is enough that the papers are sent in and disappear into the machine. I do not think it is enough to leave the public entirely at the mercy of some unknown machine when they write a letter. We ought to be told, if we accept the Minister's point of view, what happens to that file of papers and by what machinery it is finally turned out as a properly co-ordinated case, an understandable case with which the defendant can deal.

§ Mr. Hay
With all respect to the right hon. Gentleman, I think he has possibly misunderstood a great deal of the point of the Amendment. What my hon. Friend is saying is that when a Government Department, which in practice means the National Health Service, has in its knowledge certain information which might possibly lead the General Medical Council to investigate the way in which a certain practitioner has been carrying on his job, they should not just "send the papers" to the General Medical Council but should put them into some sort of proper form. In other words, some responsible official, possibly of the National Health Service, should be prepared to swear a statutory declaration saying—with the papers annexed, if necessary, to the statutory declaration—that this, that or the other has come to the notice of the Government Department, or the official concerned, and that these are passed on to the General Medical Council.
The right hon. Gentleman has quite rightly stated on a number of occasions during the course of the Committee stage of this Bill that we have to remember that we are protecting the general public. May I remind him and the Committee that we also have to bear in mind the protection of the individual practitioner concerned? We must do common justice to 1815 him too. It is very bad practice indeed for a Government Department to "send the papers" as it has been put, to the General Medical Council without any definite statement of a charge which may have been laid against a particular individual.
The definite statement of a charge is accepted in practically every other form of judicial procedure in this country. If I think that someone else has committed a crime against me, for example, stolen my property, my duty is to go to the police and eventually to the magistrates' court, lay information, take out a summons if necessary and be prepared to give evidence and state what the facts are which caused me to believe that someone had stolen my property. That is all we are asking in this Amendment. We are asking that, just as the ordinary person must make a complaint in proper written form, so, when the General Medical Council is embarking upon an investigation, there should be exactly the same procedure when the complainant is really a Government Department.
The right hon. Gentleman sees some administrative difficulties. Nothing that we wish to do here is intended to make those difficulties greater, but I say that in common justice to the individual practitioner, who may be quite wrongly accused by some person whom he is treating under the National Health Scheme, something along the lines of our Amendment should be incorporated in this Bill. The present practice seems to me extremely unjust to the individual practitioner. We are only asking here for something analogous to every other form. of criminal or judicial procedure of which I can think in this country.

§ Dr. Stross
I put down my Amendment on this matter quite a long time ago. It is as follows: in page 9. line 29, at end, insert: (f) for ensuring that a member of the Disciplinary Committee shall be disqualified for serving in that capacity in any case on which ha has already acted as a member of another Standing Committee of the Council, to determine the existence or absence of a prima facie case to warrant a disciplinary inquiry; and (g) for ensuring that an investigation of a complaint against a practitioner shall not proceed in the absence of a formal written complaint except in matters arising out of the findings of a court of law. 1816 The Amendment falls into two parts, one of which I think the Minister has accepted in principle, namely, that the screening committee should not become the executive committee and judge the cases. With reference to the second part of my Amendment, the substance of which is now under discussion, X was under the impression that my Amendment asking that there should be a formal written complaint except in matters arising out of the findings of the court of law, was a good and proper thing.
Having listened to the Minister and to the arguments, I have come to the conclusion that all we should do if I succeeded in getting what my Amendment asks for, would be to bring against the individual medical man a great and powerful machine instead of leaving things as they are and allowing that machine to send in information or papers, as the procedure has been termed, and leaving it to the good sense of the Penal Causes Committee to reject or reconsider and pass on, after which I gather that the individual accused will have his full right of notice, and papers will have to be produced, etc. In those circumstances. I do not wish to proceed with my Amendment.

§ Lieut.-Colonel Elliot
Will the Minister look into this point between now and the Report stage? It is clear that we shall not be able to finish the Committee stage of the Bill this afternoon. The point under consideration is one of some substance and several of my hon. Friends still wish to continue its examination. If the Minister were to agree to look into the matter, that would give us another opportunity later of considering the point. One does not like an Amendment hanging over for further debate on the next occasion when we consider the Bill.

Dr. Hill
So far as the Minister has referred to a decision in the tribunal dealing with matters within its field going to the General Medical Council in case there are other and wider professional implications, I accept what he says. Let me tell him what has happened. Allegations have been brought against the practitioner and they have gone through his own machinery and culminated in the rejection by the tribunal of the allegation. Then the papers, which could only relate to matters within the field of his own tribunal, have been sent to the General 1817 Medical Council. In other words, there having been failure to secure the lesser verdict of removing him from the Service, they have tried the other way to obtain the higher verdict of removing him from the register altogether.
That is the point which I hope the right hon. Gentleman will look into. I agree with him that if the tribunal has decided on a particular issue, there may be a wider implication in the decision which will go to the General Medical Council, the tribunal having rejected the complaint in entirely different circumstances.

§ Mr. Bevan
I doubt very much whether the case is as the hon. Member has described it. It would seem to me that in such a case what would happen would be that the tribunal, having found that, so far as the contractual relationship of the doctor with the Service was concerned, nothing could be proved against him, would find for the doctor. But it does not follow that there would not be charges against the doctor which would expose him to action by the disciplinary committee of the General Medical Council. One does not necessarily assimilate the other.
I shall have a look at the matter, but as I have explained to hon. Members, I hope they will not press me too far, because I can assure them that once they ask a Government Department to formalise evidence against the general practitioner, they are discriminating against the general practitioner in the most dangerous way.

§ Mr. Bevan
The hon. Member for Henley (Mr. Hay) shakes his head, but he must learn to be a little more administrative and less juristic in this matter. Whoever he may be, the Minister of Health has the obligation of defending the public and the competence of his own machinery in this matter, and he may have to formalise the evidence, in which case the medical practitioner starts off before the General Medical Council with very heavy artillery against him. Surely that is not a desirable thing to do. It would mean that two trials would have to take place and the trial of the General Medical Council would be after the preliminary trial which had taken place in the Government Department.
1818 I hope that hon. Members will not press this Amendment. We have done very well so far and up to now I have been my most conciliatory self. I suggest, especially as there is a specialised interest in this, that hon. Members should keep in mind the general duties of Parliament to protect the interest of the public as a whole, and I hope that they will not press this Amendment at this stage.

§ Mr. Pitman
I have no professional interest in this matter, but it seems to me that it is really an onus on the particular patient concerned, and any investigation and charge in that respect must have reference to a patient or a number of patients, and that the Minister should be neutral. He has no need to put his big machinery into effect unless the individual feels there is a sufficiently compelling reason to justify him prosecuting the doctor through the machinery of the General Medical Council and. the disciplinary committee. That seems to me to be the real essence of the case. It is not so much the Minister and his machinery as the individual patient—