§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Whitelaw.]
§ 4.5 p.m.
§ Mr. Marcus Lipton (Brixton)
My object in this debate is to get an assurance from the Ministry of Health that names of doctors and dentists shall be published when a local health executive withholds pay for breach of contract. I use the official jargon merely to indicate that I have studied the language used by the Minister when previously I have raised this matter on the Floor of the House. I prefer to describe this as a fine on doctors and dentists found guilty of neglecting their duty towards their patients.
It is my submission that the public interest requires that the names should be known. The medical profession is protected by a privileged phalanx of persons and organisations to a degree that no other section of the community enjoys. This phalanx includes the Minister of Health, his Medical Advisory Committee, the General Medical Council, the British Medical Association Executive, and local health executive councils throughout the country and, in the background the doctors' and dentists' protection societies. It is a truly formidable combination. Somehow or other the Daily Herald, in that excellent series of articles entitled, "The Daily Herald Explains Every Day the Facts Behind the News", will make this labyrinth clear to the ordinary layman.
So that I shall not be accused of distorting the perspective, I shall put the figures on record. There are 98,000 doctors and dentists on the National Health Service register. During each of the last three years the number of doctors and dentists fined and the amount of the fines have been as follows 86 doctors and dentists, £3,941; 81 doctors and dentists, £3,978; 120 doctors and dentists £3,914. It would, therefore, appear that the number of guilty doctors and dentists is going up and that the average fine, or amount of pay withheld, is going down. Is the degree of guilt getting less, or are 906 executive councils getting more lenient? It would be interesting to know.
It would be of interest to know, first, how many of the guilty men appeal to the Minister against decisions of the executive councils, and, secondly, how often the Minister increases or reduces the fines. Thirdly, how often does the Minister refer really bad cases to the General Medical Council for further disciplinary action, and what does the General Medical Council do about that?
I come to the crux of the matter. As to publishing the names, the Minister takes the view—I do not think that I misrepresent him—that there is a contract between the practitioner and the executive council to which the patient is not a party. From the paint of view of the unfortunate victim of what is euphemistically called a contract, this is a bit specious dialectic which is cynical, legalistic and heartless. The Minister has called this a curious triangular relationship, but what about the doctor-patient relationship, which comes in a bad third, if it comes in at all?
In the ordinary case of a breach of contract the aggrieved party is normally a party to the contract. In the case of guilty doctors and dentists, the only person who really suffers is neither the guilty doctor or dentist or the health executive, but the unfortunate patient and the general public. In those circumstances, the heaviest burden of punishment and suffering, which he may endure for the rest of his life, falls on the patient.
It would help to hold the scales of justice a little more evenly balanced if the name of the guilty doctor were published, not merely as a deterrent to the guilty doctor, but also for the sake of other patients in the guilty doctor's care who are entitled to know what kind of person that doctor is. It would also be fairer to other doctors in the neighbourhood who come under a cloud of suspicion whenever a doctor is fined in the circumstances to which I have referred.
I have said this before, and I repeat it: a doctor in the National Health Service is a public servant, doing a public duty for which he is paid out of public funds. It is not unreasonable, therefore, to suggest that the public is 907 entitled to know for its own protection who is not doing his job. Incidentally, most of the expensive training to become a doctor is paid for out of public funds, too.
In a recent speech to the Winchester Division of the British Medical Association the Minister dealt with the problem and said that the name of a guilty doctor fined by the Executive Councilought no more to be blazoned in public than…the decorator who agrees to knock £10 off his contract price for painting a house because he admits having made a mess of the ceiling.It is no wonder that in certain quarters of the Press he was described as the "Minister of Distemper", administering paint-pot medicine. In my submission, this smart-Alec comparison which he made is both stupid and insulting, for the worst that a painter can do is to make a mess of the ceiling and the worst that a doctor can do is to endanger human life.
§ The Parliamentary Secretary to the Ministry of Health (Miss Edith Pitt)
The hon. Member has misquoted my right hon. Friend, and I am sure that that is not his intention. He said that in his Winchester speech my right hon. Friend stated that the guilty doctor is no different from the decorator. I have a copy of my right hon. Friend's speech, as has the hon. Member, because I sent him one. In that speech, my right hon. Friend said:Now, you and I understand perfectly well that this is a misconception; that if the doctor has committed an offence against the law he stands to be prosecuted for it in the ordinary way like anyone else.He certainly did not refer to guilty doctors. We must make that clear.
§ Mr. Lipton
I accept that correction. I am sorry that I was carried away. The words "guilty doctor" do not appear in the text of the Minister's speech, but he referred to a doctor who had committed a breach of contract and said that his name ought no more to be blazoned than that of the house decorator.
As I said, the worst that a painter can do is to make a mess of the ceiling and the worst that a doctor can do is to endanger human life. Unlike doctors, most of us cannot bury our mistakes. If a doctor commits adultery, then for very understandable reasons that is the end of 908 his career, at any rate for a while, but if, through negligence, he causes unnecessary suffering, the aggrevation of a disease, or even danger to life, he has merely broken his contract with the Ministry, and his pay and his name are withheld, and that is an end to the matter.
The Minister says that if a doctor has broken the law he can be prosecuted. We all know that. If he has damnified any person he can be sued for damages. In the general run of case which I have in mind, these remedies are purely theoretical, especially if one embarks on the expensive and perilous task of claiming damages in a civil court.
I have received correspondence on this subject from all parts of the country, and the letters are far too numerous to acknowledge individually. I will quote only one, which shows how these things happen and how illusory is the carrot of the legal proceedings dangled by the Minister. A lady from Sale, Cheshire, writes as follows:In August last my husband became ill after arriving home from the office, with what appeared to be acute indigestion. As he had previously been in hospital for six weeks and off work for five months with coronary trouble, I telephoned the doctor who was standing in for our own doctor, as it was his half-day off. The doctor refused to come and said it was indigestion and he could do no more than I could, which was to give him some bicarbonate. Consequently, my husband died without medical attention.I reported this to the Executive Council of the National Health Service and was summoned to attend a hearing at Crewe. The doctors here, who were trying the case, duly congratulated me on the way I gave my evidence and asked the doctor at fault whether he was not aware that indigestion could be a symptom of thrombosis, and he said, 'Yes'.They then asked him, if he had come to see my husband, would he have acted differently, and he said 'No'. He would still have diagnosed indigestion. The subsequent result of the hearing was 'that the condition of the patient was such as to require the doctor to visit him promptly'. They 'found' that by reason of such failure the doctor had committed a breach of Clause 7 (6) of the terms of service etc. They recommended: 'That the respondent's attention be directed to the obligations laid upon him by Clauses 6 (1) and 7 (6) of his terms of service with the Executive Council and that he be warned to pay to them the utmost regard in the future.'That is a quotation from the executive committee's findings.
This lady went on to say:I am convinced that had my husband received adequate medical attention that night 909 he would have been alive today. My own doctor told the Council that it was 'unfortunate that the doctor did not visit my husband'. I again wrote to the Council to say that I thought something more than just a reprimand should be done to the doctor in question as they had 'found' him to have committed a breach of his terms of service, but they wrote back and said I could take it through the courts if I wished, but they did not recommend it.I know that it may be argued that if the names are published, the penalty of publication might be out of all proportion to the gravity of whatever it is the practitioner had done wrong. Nevertheless, in my view, the British public is the most tolerant public in the world, and can make a shrewd judgment of what is a serious offence or merely a technical offence. The public can also assess at its true value the genuineness of a spiteful crank or patient making ill-founded allegations. Non-publication is merely a convenient arrangement between the Minister and the medical profession. Any newspaper that wants to publish the name of a guilty doctor or dentist who has been fined by a executive council is at liberty to do so without in any way breaking the law.
I should like to commend the public-spirited action of the Sunday Pictorial in publishing, in its issue of 26th March last, the name of a doctor in Essex who was fined £52 10s. for failing to visit a 14-year-old boy who was dying of cancer and giving some pain-killing injections before he died the next day. The Minister wrote in this case—and I quote from the Minister's communication on the subject, which appeared in the Press—that he wasunable to take as serious a view as the Council did of the failure in contractual obligations.The Sunday Pictorial also published on 21st May last the name of a Birmingham dentist who was fined £1,000 for bad dental work and who was later fined £200 for the same kind of thing. I am informed that in neither case has the Sunday Pictorial received any threat of legal proceedings on account of the publication of these names. I have an idea that if legal proceedings for publication could have been instituted, the doctor or dentist concerned, with all the special machinery at his disposal, would have slapped in a writ long ago.
910 I want to allow the Parliamentary Secretary adequate time to explain the situation, and I will, therefore, conclude my remarks. It is my view that in this sector of the National Health Service, as in so many aspects of life in a civilised community, the best safeguard of the public interest is the fresh air of publicity. I know that there are two sides to every case. Then, let the public hear both sides and all the facts, which will be to the benefit of all concerned.
I ask the Parliamentary Secretary to accept what I regard as the basic principle of justice in a free society—that justice shall be done in the open, not by some secret courts in which identities are secretly screened. The time has come to change the practice under which doctors can behave badly and yet have their names kept secret. The Minister has said that if the professions concerned represent that the names ought to be published, he will take account of their views. I shall, however, be pleasantly surprised if the professions are willing to surrender their unique privileges in this matter.
It is all very well for the Minister to think about the professions, but what about the patients? He has a duty to them, too. Bringing these things fully into the open and removing all the mystery and false rumours would be fairer to everyone in the long run. The resilience of democracy consists in the right to know about the good and the bad, and its readiness, once it knows its mistakes, to profit by them. I therefore hope that the Parliamentary Secretary will agree that a case has been made out for reconsidering the present situation, which, I think, is regarded by the majority of people as thoroughly unsatisfactory. The time has come to name the guilty men.
§ 4.20 p.m.
§ The Parliamentary Secretary to the Ministry of Health (Miss Edith Pitt)
Perhaps the first thing I should try to make clear in reply to what has been said is the purpose of the service committee procedure, which is what the hon. Member for Brixton (Mr. Lipton) has been talking about this afternoon. The purpose of the service committee investigations is to consider, according to statutory rules of procedure, whether a practitioner has complied with his terms of service. It is not to decide issues 911 between two parties. The courts are available if a complainant seeks damages. Nor is it to punish an offence. This is also for the courts. Nor is it to determine whether a practitioner is fit to practise. This is for the General Medical Council or other professional registration body and, in relation to the National Health Service, for the Tribunal.
The hon. Member said that he preferred to describe what happened in this situation as fines. He is well aware that that is an incorrect description. Indeed, he said so later in his speech. He has certainly been told so in reply to his earlier Oral Questions. Doctors and dentists are not fined by executive councils. Payments to doctors and dentists are in return for professional services of a certain standard and quality, and in so far as these services are not adequately rendered the payments are not earned. Under their contracts, therefore, the Minister may direct a withholding from their remuneration where, following this procedure, they are shown not to have complied with their terms of service and therefore not to have properly earned their remuneration.
The procedure of investigation leaves the doctor and the patient in the same position vis-à-vis one another and vis-à-vis the law. In the general medical and dental services, where the doctor or dentist enters into a contract to supply services on certain terms which are set out in the Regulations, it is necessary to provide some means of ensuring that the terms of the contract are fulfilled and that a proper standard of service is given. The details of the arrangements for investigating complaints and for withholding remuneration in suitable cases are written into the contracts which are accepted by all doctors and dentists taking part in these services. They have been negotiated with the professions concerned and follow substantially what was done under the National Health Insurance Scheme of 1911.
The hon. Gentleman has suggested that the names of doctors and dentists who suffer withholdings should be published. This means that this proposal is limited to cases where (a) a breach of the terms of service has been found, and (b) the breach is, in the Minister's view, sufficiently serious to warrant some with- 912 holding of the remuneration, though if the smallest withholdings are included, I should point out that some of the breaches would be fairly minor.
There are objections to this proposal. The strongest reason for the non-publication of names is that the service committee procedure is a matter arising out of the contract, and is in addition to, not in substitution for, the patient's right of recourse to the courts, civil and criminal, which is open to any person who thinks that he has a case for claiming damages or other remedy.
Doctors and dentists in the National Health Service are, in this respect, in exactly the same position as are members of any other profession. They are not shielded in the way the hon. Gentleman attempted to state. The service committee procedure is part of the administration of the National Health Service, and is designed to ensure that the general medical and dental services provided to the public are maintained at a satisfactory standard.
The hon. Gentleman referred to the withholding in the case of the Essex doctor and, in a note he was kind enough to send me prior to this debate, he asked me to say why the Minister reduced this withholding. The Minister's position in this case is that he has a statutory duty to direct a withholding, if appropriate, after considering any representations by the doctor, and after consulting his medical advisory committee. Here, the decision has been given and published, giving the reasons—and, again, the hon. Gentleman has a copy. This means that the quasi-judicial jurisdiction of my right hon. Friend has been exercised, and he has no further power in the matter. It would not, therefore, be appropriate for either my right hon. Friend or myself to comment on that decision, or to add to the explanation given in the reasoned decision letter.
The hon. Gentleman asked me: is the degree of guilt less? I assume that what he seeks is a comparison between the withholdings of the present day and those in the years past. The short answer is that the number of cases where remuneration is withheld has tended to diminish in recent years as compared with the early years of the Service. He also asks in what proportion of cases the withholdings 913 are reduced or increased. In the years 1958, 1959 and 1960 there were 49 variations for doctors; 16 were increases in the amounts recommended by councils, and 33 were decreases. There were 71 variations for dentists; 41 were increases in the amounts recommended by councils, and 30 were decreases.
Twenty-two variations for doctors, and 21 for dentists, followed on appeal. The number of withholdings varied should be related not only to the total cases where withholdings were made, which was 287 for the three years in question, but also to cases where no withholding was made, though the council recommended one. The majority of withholdings are as recommended by councils, about one-third are varied.
The hon. Gentleman asked how many cases involving withholdings were referred to the General Medical Council. Since 1948, and up to the end of 1960, details of 232 cases had been referred by the Minister to the General Medical Council: and 284 cases to the General Dental Council. In some of these there was no withholding, but they were of a type in which the Council was known to be interested for example, false certification, or cases in which there had been suggestions of what appeared to be professional misconduct.
The Minister does not refer cases formally, or act as complainant, nor are the findings of the service committee automatically accepted as evidence by the disciplinary committees of the Councils, which must go into the cases afresh, but the same circumstance which concern the executive committees and the Minister from the point of view of whether a practitioner has complied with his contract may interest the General Medical Council from the point of view of whether the person has been guilty of infamous conduct in any professional respect, or similarly, the General Dental Council with dentists.
§ Mr. Kenneth Robinson (St. Pancras, North)
On this question of references to the General Medical Council and the General Dental Council, may we have an assurance that, quite apart from infamous conduct, the Minister within his discretion does refer all cases which come to him from executive councils which 914 involve serious negligence or gross professional incompetence?
§ Miss Pitt
I think I can give that assurance. Such serious cases would be brought to the attention of the appropriate professional body.
It is reasonable that the Minister should pass on to the General Medical and Dental Councils information which seems relevant to their disciplinary functions, but reference to the Council is not part of the formal action on a service committee case.
The hon. Gentleman asked me what was the basis and authority for nondisclosure. Essentially, the current procedure is the result of about fifty years' experience in the operation of similar procedures since the introduction of National Insurance. There has been no change in the practice that names are not given of practitioners whether or not they are found to have complied with their terms of service.
To keep the matter in proportion, it is necessary to remember that the number of serious cases is small. There are more than 20,000 general medical practitioners taking part in the Service. I think that the hon. Gentleman gave the wrong figure. I have not carried in my head the figure he gave. However, the one I have given is correct.
§ Miss Pitt
I knew that it was somewhere in the ninety thousands, and I could not think where the hon. Gentleman had got it.
General practitioners are exposed to the scrutiny of their patients throughout their working day, and also they must be ready to answer calls at night. Yet, in 1960, only 370 complaints were investigated by medical service committees throughout England and Wales. In only 87 of these cases was the doctor found to have failed to carry out his obligations. Of the 87, only 37 were sufficiently serious to warrant a withholding of remuneration.
In the same year, 400 complaints against dentists were investigated, and the dentist was found to have failed in his obligations in 242 of those cases, 83 915 of them being sufficiently serious to justify withholding of remuneration.
The figures I have given include complaints from all sources, not only those made by patients. They include, for example, administrative irregularities the investigation of which has been instigated by the dental estimates board or by the Ministry of Pensions and National Insurance. Of the 37 cases in which remuneration was withheld from doctors in 1960, only 18 were in respect of failure to visit or to carry out proper and necessary treatment. The remaining breaches of contract were in such matters as irregular certification, failure to return records and irregular issue of prescriptions.
Similarly, of the 83 cases where, in 1960, remuneration was withheld from dentists only 42 arose from unsatisfactory treatment. The remaining breaches were connected with such matters as irregular claims to fees, charging fees to patients and late submission of claims for payment.
In the more serious cases it is customary to send particulars of the complaint and the investigation to the General Medical Council or the General Dental Council, as the case may be, for any action they may think necessary. I have already given details of the number of cases in the past three years.
916 The procedure of reference to the National Health Service Tribunal also is available in those few cases where it is thought that the doctor or dentist has shown by his behaviour that his continued participation in the general medical or dental service would be prejudicial to its efficiency. Fourteen doctors and 44 dentists have been referred to the Tribunal since the start of the National Health Service, Eight of the doctors and 34 of the dentists were either excluded from further participation in the service or were allowed to resign on undertaking not to practice under the National Health Service. The names of those doctors and dentists were published.
The hon. Gentleman concluded by saying that justice should be done in the open and not by secret courts, the public having a right to know. This is a matter of administration within the National Health Service. Action is taken, as I hope I have explained—I am glad of the opportunity to try to put the matter clearly on record—
§ The Question having been proposed after Four o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at twenty-five minutes to Five o'clock.