HC Deb 12 June 1995 vol 261 cc548-58 6.55 pm
The Parliamentary Under-Secretary of State for Health (Mr. Tom Sackville)

I beg to move amendment No. 1, in page 5, line 17, at end insert—

  1. '.—(1) Section 37 (unfitness to practise through illness, etc.) shall be amended as follows.
  2. (2) In subsection (3)—
    1. (a) in paragraph (b), after the word "expiry" there shall be inserted the words "(or termination under subsection (3B)(b) below)"; and
    2. (b) for the words "; but the Committee shall not" there shall be substituted the words "; but, subject to subsection (3A) below, the Committee shall not".
  3. (3) After subsection (3) there shall be inserted—
    1. "(3A) The Health Committee may give a direction extending a period of suspension indefinitely where—
    2. (a) the period of suspension will, on the date on which the direction takes effect, have lasted for at least two years, and
    3. (b) the direction is given not more than two months before the date on which the period of suspension would otherwise expire.
    4. (3B) Where the Health Committee have given a direction for indefinite suspension, they—
    5. (a) shall review the suspension when requested to do so by the person whose registration is suspended (but not until two years after the date on which the direction takes effect and not more than once in any period of two years), and
    6. (b) having carried out such a review, may direct that the suspension be terminated.".'.
Amendment No. 1 will give the General Medical Council's health committee the power to suspend a doctor's registration indefinitely where he has already been suspended for two years. The health committee would have to make that direction within two months of the expiry of the current period of suspension. The amendment would amend the health committee procedures to bring into effect the proposals made by the GMC in a consultation document last year. The power will be similar to that already proposed in the Bill for the committee on professional performance.

The Government recognise the benefits that the amendment would have for sick doctors with a grave and persistent impairment who are currently subject to annual hearings. Those hearings can be stressful, may raise false hopes and may have a demoralising effect on the doctor.

The Opposition introduced a new clause of a similar nature in Standing Committee, for which I commend them. I agreed then to accept the change in principle and to introduce a Government amendment on Report. I am pleased, therefore, to commend amendment No. 1 to the House.

Mr. Nicholas Brown (Newcastle upon Tyne, East)

I welcome the amendment. As the Minister rightly said, we discussed this topic in Committee in relation to an Opposition amendment. When we pressed the Minister on the matter, he was able to give us an assurance that the Government hoped to return to it on Report and he has done so.

There is no division between the parties on the matter of substance. Both our amendment and the Government's amendment do essentially the same thing. They amend the second of the three procedural devices open to the General Medical Council in such a way that, when the health procedures have been invoked, the council has the power, which it did not have before, to suspend a medical practitioner from the register indefinitely. That is intended not as a punishment or disciplinary measure, but to give a medical practitioner whose health may be failing the chance to recover before coming before the GMC for reaccreditation.

The existing procedure requires an annual review, which in some circumstances can be a cruel and disadvantageous thing. That will be superseded, where appropriate, by the arrangements that we are putting in place today. I therefore join the Minister in supporting his version of how we should do this rather than ours. Of course, he has the benefit of the parliamentary draftsmen and we do not.

Mr. Andrew Rowe (Mid-Kent)

I am very much in favour of the amendment and have no disagreement with it. My anxiety about it is that it does not do anything to tackle a problem which exists in the national health service and which I hope that Ministers will deal with in some other way.

Clear evidence exists that doctors who have been suspended on pay for various misdemeanours falling short of extreme unfitness to practice are able to work while their cases are being examined or explored and, as I understand it, to earn a salary in other parts of the NHS. Clearly, that is malpractice and should not be allowed. I should be grateful if my hon. Friend the Minister could assure me that the matter is being considered elsewhere; otherwise, it would be handy to deal with it in the schedule.

Mr. Alex Carlile (Montgomery)

I should immediately say that I am a lay member of the General Medical Council's health committee. On the comments that have just been made, that issue is not in any way connected with the GMC. I share the views of the hon. Member for Mid-Kent (Mr. Rowe), but that matter needs to be dealt with in the structures of the national health service rather than in the Bill.

I welcome this change in the law. I have on the floor of my office five cases containing papers for next week's meeting of the GMC's health committee. The demand of annual reviews on the hard-working and high-quality staff of the GMC is very great; it is also very expensive. The change is a practical one which recognises the merits of the case and it will be welcomed throughout the GMC.

Amendment agreed to.

7 pm

Mr. Nicholas Brown

I beg to move amendment No. 3, in page 6, line 15, at end insert—

'6A— (1) Section 42 (Preliminary proceedings as to professional misconduct and unfitness to practise) shall be amended as follows—

(2) In subsection (3)(c) for the words "two months" there shall be substituted the words "six months".

(3) After subsection (3) there shall be inserted—

(3A) The Preliminary Proceedings Committee may, subject to subsection (4) below, if satisfied that to do so is necessary for the protection of members of the public or is in the interests of the registered person referred to inquiry, at any time renew, for a further period not exceeding six months, an order for interim suspension or for conditional registration. (4) After subsection (4) there shall be inserted—

(4A) An appeal shall lie to the court (within the meaning of section 38(7) of this Act) from any direction of the Preliminary Proceedings Committee given by virtue of subparagraphs (3)(b) and (c) above. (5) In subsection (6), for the words "two months" there shall be substituted the words "six months".'.

The amendment deals with the second of two issues that we raised in Committee and to which the Government said that they wished to return on Report. We have just dealt with the first issue through amendment No. 1. I do not think that this second issue is contentious between the parties, although the Government may wish to produce a different draft as I understand that there are technical difficulties with drafting an amendment to achieve the purpose that lies behind our amendment.

The amendment deals with the issues referred to earlier by the hon. Member for Mid-Kent (Mr. Rowe). Its purpose is to give the GMC preliminary proceedings committee the power to make orders for interim suspension for periods of up to six months and for renewal thereafter as necessary. That power is not currently available to the GMC.

Under the present powers conferred by the Medical Act 1983, periods of interim suspension and conditional registration can last for a maximum of only two months and they are not renewable. Therefore, it is possible for a medical practitioner to try to practise again if somebody will employ him. The GMC is aware of the problem. It published a consultation paper in February 1994, which made a powerful case for the proposal we have put before the House today. The GMC says that experience has shown that it may take longer than two months to arrange medical examinations of and reports on a doctor who is referred to the health committee.

A doctor may successfully apply for an adjournment of a forthcoming health or professional conduct hearing on a number of grounds, such as being hospitalised, family illness abroad, and so on. At present, it is possible for doctors under investigation to abuse the judicial arrangements and so escape interim suspension from the register while being investigated. That is clearly wrong. I note that the Secretary of State has said publicly that she wants to do something about the matter and our amendment provides the opportunity to do so. I do not expect there to be any difference between the Opposition and the Minister on this, and I await his comments with interest.

Mr. Sackville

As the hon. Member for Newcastle upon Tyne, East (Mr. Brown) said, the GMC already has the power to impose interim suspension or interim conditional registration, but only for a period of two months. It is generally agreed that, in current circumstances, that is not sufficient, as it usually takes rather longer to mount proceedings. The GMC has already consulted on the matter and has received a positive reaction to extending interim suspension from two months to six months. Further orders might extend the suspension for a further period.

We have considered the issue and we believe that the correct period would be three months. As a doctor's livelihood may be affected and no case has yet been proven, we agree that the doctor should have the right of appeal to the High Court—

Dame Elaine Kellett-Bowman (Lancaster)

Does my hon. Friend mean a total of three months suspension or three months renewable?

Mr. Sackville

My hon. Friend is right to raise that point. I am referring to renewable periods. Each time the GMC wished to continue a suspension, it would have to bring the practitioner concerned in front of the relevant committee. The GMC's existing power to impose interim conditions would be similarly extended and we welcome that.

The hon. Member for Newcastle upon Tyne, East helpfully wrote to me last week urging the Government to expedite our consideration of the matter. We have had further discussions with the GMC, with other Departments and within the Department of Health to ensure that we get the detail of any amendment correct. I regret that it has been impossible to agree the detail of an amendment and to bring one forward within the time available.

We are concerned to get matters of policy correct, such as our judgment that there should be a six-month period, renewable for three months, in contrast with the Opposition's proposal for a renewable period of six months. The shorter period is in line with natural justice. It gives further protection to the doctor while at the same time ensuring that the GMC has an incentive to get on with proceedings and to bring the matter to a successful resolution.

I ask the hon. Gentleman to withdraw his amendment. I assure the House—and the hon. Gentleman in particular—that we will introduce a suitable amendment in another place to bring into law what the hon. Gentleman has sought through his amendment.

Mr. Alex Carlile

I have just one comment to make on the issue and it relates to the fact that the GMC is not a court made up of professional judges or of people who are paid to do the job. The GMC consists of elected and nominated members who are not remunerated at the professional rate for the work that they do. Therefore, to a great extent their work is voluntary.

Suggesting that we need to ensure that the GMC gets on with its job might imply that it is not diligent in so doing. The hon. Member for Chislehurst (Mr. Sims) is a fellow lay member of the GMC and it is a pleasure to see him in his place. I am sure that he shares my view that there is enormous pressure on members of GMC committees and that no criticism can fairly be levelled against them.

While there is a case to be made—and it has been well made on both sides of the House—to change the present arrangements to allow longer and renewable suspensions, I hope that the Minister recognises that the national health service has a part to play in ensuring that doctors who are not performing to the standard contractually required of them are, in appropriate circumstances, taken out of their jobs while proceedings are pending before GMC committees.

There is a woeful lack of information in the N. network. Often, a hospital has absolutely no idea that doctor is facing proceedings before the GMC. That is something which frustrates the GMC's committees—notably the professional conduct committee, on which I served for five years. It is valid to make a plea to the Minister to ensure, in the broad context, that information is networked around the different parts of the NHS so that, when a doctor applies for employment, it can be quickly ascertained whether he is the subject of a complaint to the GMC.

In the Gaud case—the notorious case of the surgeon who was responsible for the spreading of hepatitis B and who was subsequently imprisoned for a year by Southwark Crown court—it was evident from reports on the case that Mr. Gaud was employed at hospital after hospital despite the fact that he had already been dismissed from employment because of his hepatitis B condition. Indeed, in that case it would appear that quite senior consultants gave references for Mr. Gaud despite possibly one or more of them knowing of the hepatitis B condition. Such a situation should never arise.

Mr. Rowe

There have also been cases of the royal colleges and others giving oral statements—on the telephone—about not being happy at the prospect of working alongside a particular practitioner, but refusing to put those statements in writing when asked to do so. There is a whole area of uncertainty in the national health service which the hon. and learned Gentleman is rightly addressing.

Mr. Carlile

The hon. Gentleman is right. Indeed, I suggest that the way in which locum consultants in particular and locum associate specialists are employed simply does not bear examination. It is horrifying to think, but true to say, that they are sometimes employed as a result of a telephone call to a medical employment agency without any references being taken up at all. That is not the GMC's fault. The GMC is entirely blameless in such situations; it has no relevant powers. But the Government can take steps and I urge the Minister to consider what further steps are available in that context.

Mr. Sackville

On the first point made by the hon. and learned Member for Montgomery (Mr. Carlile), I would be the last to suggest that we wanted to put any undue pressure on the General Medical Council. I certainly agree that what it does is voluntary, for which we are very grateful. If there were any implication that bringing in a three-month rather than a six-month renewable power was in order to put pressure on the GMC, I would remind the hon. and learned Gentleman that I am informed that most cases can be dealt with within six months and that the proposal would deal with rather exceptional cases.

On the second point, and echoing what my hon. Friend the Member for Mid-Kent (Mr. Rowe) said, clearly the national health service has to be very careful. It has to exchange intelligence on such matters and constantly watch out for doctors whn—perhaps—should not be employed. I remind the Hot that any doctor who seeks to work as a doctor in contravention of a suspension—interim or otherwise—commits a criminal act and could be arrested and charged for it. I give the House the assurance that we shall be bringing forward a suitable amendment in another place to cover the matter.

Mr. Nicholas Brown

In fairness to the medical profession, it is only right to say that the amendment would, in any event, cover only a very small number of cases each year.

I am grateful to the Minister for his response. It did not take me by surprise because, as he correctly said, there has been a very satisfactory exchange of correspondence between us. Even if there had not been an exchange of correspondence, I could have read all about the matter yesterday in The Mail on Sunday, the campaigning newspaper that gets results. It carried a rather ferocious looking picture of the Secretary of State under the headline "Grateful". I assume that that means that she is grateful to the parliamentary Labour party for tabling the amendment and for pressing the Government on this matter.

The important point is not that the period of suspension be for six months and renewable as necessary, as the Opposition's amendment proposes. I have no quarrel with the Government's proposition for a six-month suspension, renewable for three-month periods again and again if necessary. The important point is that there is a power for interim suspension and that it is renewable. If the Government wish to come forward in another place with something containing those principles, drafted in a way that is satisfactory to them and to the parliamentary draftsmen, it would be the right way to proceed.

I am grateful to the Minister for his remarks and assurances, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Motion made, and Question proposed, That the Bill be now read the Third time.—[Dr. Liam Fox.]

7.14 pm
Mr. Sackville

This Bill will, by general agreement, fill what is seen as a serious gap in the General Medical Council's fitness to practise procedures, which was first identified by the council itself. We have been pleased to be able to provide legislative time and support for the Bill. The Bill will add to the existing disciplinary powers of the GMC. It will enable it for the time to address allegations that a doctor's standard of professional performance is seriously deficient. It will assist the GMC's key purpose of ensuring that only doctors who are fit to practise remain on the medical register. It will further strengthen quality of service and patient safety, while providing a clear indication to members of the profession of what is expected of them.

I express my appreciation of the cross-party agreement and for the assistance of various hon. Members of all parties during the passage of the Bill. I would also like to use this opportunity to congratulate Sir Robert Kilpatrick on his six and a half years as president of the GMC. He is soon to step down. During his time as president, through his great personal virtues and commitment, I am sure that he increased the standing of the profession as a self-regulating body. He has also managed to guide the GMC towards a better balance between the protection of the public and the protection of the rights of medical practitioners. I am, therefore, very happy to commend the Bill to the House as a fitting tribute to Sir Robert's excellent presidency of the General Medical Council.

7.17 pm
Mr. Alex Carlile

May I first echo the words of the Minister about the retiring president of the General Medical Council, Sir Robert Kilpatrick? He is a man who can best be described as having an excellent bedside manner. He has led the GMC with kindly and courteous consideration throughout his period of office. He is being succeeded by an extremely fine and worthy successor, who I am sure will help the GMC to continue to move forward. Sir Donald Irvine will be the first general practitioner to become president of the General Medical Council. Those of us who know him well—even those who have met him only briefly—quickly discovered his qualities of leadership and his articulate presentation of medical matters.

When I joined the GMC, I was surprised to discover what a hard-working and determined organisation it was. I had misgivings about such a self-regulating body dealing with the registration of doctors, the disciplining of them and all matters connected with it. After serving on the GMC for about six years, I believe that it does its job rigorously and protects the public extremely well. As the Minister said, the impetus for the Bill came not from the Government or the Opposition, but from the GMC itself. The fact that the GMC is prepared to look for improvements in the law and in its procedure speaks volumes in evidence of the council's determination.

I welcome the Bill. The GMC is grateful that the Government gave time for it. There are other issues on which the GMC has asked for legislative time, some of them are complex and relate to difficulties involving registration and training. I hope that time will be found at least as readily for those issues as for the subject before us.

7.20 pm
Sir Anthony Grant (Cambridgeshire, South-West)

I must apologise for the fact that I was unable to attend the Second Reading debate. I was abroad with the Select Committee for Trade and Industry at the time.

My interest in the subject stems from 10 years ago and the tragic death of a young lady called Harriet English, the daughter of my friend and agent in my constituency, Richard English and his wife Ann. I raised the subject of her case on two occasions in the House, the second of which was 25 March 1986.

Harriet English was a young lady of 22 who was a perfectly fit and athletic girl. She felt tired after playing badminton and engaging in other exercise, and complained of a pain in her shoulder. Her general practitioner, Dr. Barretto, was consulted and diagnosed a torn ligament and administered an injection of cortisone. He made no other inquiries. Harriet was similarly treated by his partners, Dr. Ryan and Dr. Page. Sadly, four days later she was rushed to the London clinic in agonising circumstances and died of septicemia which had not previously been diagnosed.

There was a great case before the GMC on 18 March 1986 and various experts and counsel were engaged on both sides. One expert, Dr. Martin Wood, attested that Harriet's symptoms should have alerted Dr. Barretto to the fact that she was suffering from something more than a torn ligament. The GMC's finding, from which there was no appeal except on a point of law to the Privy Council, was that serious professional misconduct was not proved, so the doctors were cleared. Nevertheless, as I told the House then, the case left unanswered questions of competence and acceptability of conduct. But no alternative charge was available under the Medical Act 1983.

I worked closely with the hon. Member for Newham, South (Mr. Spearing), who had many similar cases, and was a sponsor of the private legislation that he sought to bring before the House. Therefore, I welcome the Bill before us as it seeks to rectify, as the Secretary of State said on Second Reading, the fact that, with regard to serious misconduct, no such powers exist to deal with doctors whose performance may be seriously deficient but who, nevertheless, fall short of those extremes. That is precisely what happened in the case that I have mentioned.

As I said in the House in 1986, the law as it stood was rather as if the only motoring offence was the charge of dangerous driving, and there was no offence of careless driving, the lesser offence—or as if someone could be charged only of murder, not manslaughter. I said in 1986 that I thought that that was ridiculous and I welcome the change that is being made.

The Secretary of State, to whom the hon. and learned Member for Montgomery (Mr. Carlile) paid tribute, said: The Bill plugs the gap … the initiative came from the GMC."—[Official Report, 25 April 1995; Vol. 258, c. 673.] The right hon. Lady might perhaps have added that the GMC was chivvied to a great extent by the hon. Member for Newham, South and, to a lesser extent, by myself, as well as by the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith). The GMC was galvanised into taking action by the tragic cases that hon. Members brought to the House.

Can I be absolutely assured that the Bill covers cases such as that of Harriet English? I have read the Committee reports and the full effect of clause 1, and the phrase "seriously deficient" is not entirely clear. I am not certain from the Committee report precisely what triggers the new procedure.

I believe that the Bill improves the law and I strongly support that improvement. I am sure that careful scrutiny in another place where there are more distinguished doctors than in this place—[Interruption.] With certain most notable exceptions—[Interruption.] If I have to make more exceptions, I shall have to excuse every Member of the House. There are other distinguished people in another place who will no doubt rectify, as they always do, any little errors or lacunae in the Bill.

I want to be certain that the Bill will prevent tragic cases such as that of my constituents. Richard and Ann English know that nothing can bring back their beloved daughter, but they are anxious, as I am, that others should not suffer her tragic fate.

7.24 pm
Mr. David Congdon (Croydon, North-East)

I welcome the Bill. I was able to speak on Second Reading and I noted with interest in the Committee proceedings that the fact that I spoke on Second Reading seemed to have been picked up by the hon. Member for Newham, South (Mr. Spearing). I was flattered that the north-east Croydon question was referred to, especially as the point that I raised was based on an original point made some years ago by the hon. Member for Newham, South. He did so in the context of a child in his constituency who died from meningitis when a doctor refused to go and see the child. The case, although proven, was not found to amount to serious professional misconduct. I have always viewed the Bill as an attempt to remedy that gap or defect in existing procedures.

I, too, read the reports of the Standing Committee. The reports were of some length and my impression was that, in response to probing by the hon. Member for Newham, South, my hon. Friend the Minister was able to confirm that the procedures could be triggered by a single incident. That is important, because it is possible to conceive of circumstances where a doctor's single act does not constitute serious professional misconduct, is not part of a pattern or a number of repeated occurrences, but most reasonable people might say that it was not good enough and something should be done about it.

I hope that my interpretation of the reports of the Standing Committee can be confirmed. It is important that we do not find ourselves a few years hence discovering that the cases that today we thought would be dealt with by the Bill are not covered.

Apart from those minor reservations, I am pleased to support the Bill's Third Reading.

7.27 pm
Mr. Nicholas Brown

I support the Bill's Third Reading. The Bill came before the House with all-party agreement. My right hon. Friend the Member for Derby, South (Mrs. Beckett) promised during the debate on the Queen's Speech that the Bill would have a fair wind through the House from the Opposition. We made informal representations to the Government stating that we would be happy with a Second Reading Committee rather than a half-day's debate on the Floor of the House.

It was the Government who sought the full day's debate on the Floor of the House, which, towards the end, became repetitive although well-informed, largely because people were reading from the Library note, which had been well prepared. Like other hon. Members, I pay tribute to my hon. Friends the Members for Newham, South (Mr. Spearing) and for Strathkelvin and Bearsden (Mr. Galbraith) who raised the issue and attempted to introduce their own legislation prior to the Bill before us.

The Bill increases the powers of the General Medical Council, the medical regulatory body. It enables it to take action against doctors whose professional performance has become seriously deficient. It represents a third procedure that is now open to the GMC. It already has powers to take action when a doctor's fitness to practice is called into question by virtue of first, serious professional misconduct or, secondly, ill health. The Bill proposes a third procedure.

The action that the GMC will be able to take ranges from ordering registration to be dependent on the doctor in question undergoing a course of retraining, to ordering indefinite suspension from the register. The Bill also makes provision for doctors to remove themselves voluntarily from the General Medical Council register.

While I welcome the Bill, there are three points that I should like to raise. They in no way undermine my support for the Bill, but they are matters that I believe remain outstanding. Concerns were expressed in Committee that the new powers of voluntary removal from the register might allow doctors who are undergoing investigation for serious professional misconduct to escape sanction; in other words, that doctors could voluntarily remove themselves from the register before an inquiry caught up with them.

It is important to consider patients who have been adversely affected by such doctors. The victims of a medical practitioner are unlikely to be satisfied if they feel that the doctor has somehow escaped punishment for his misconduct. It is important that justice is done and that those who have suffered feel that justice has been done. It is very important that the procedures do not allow the rare, errant medical practitioner to get off the hook.

Secondly, the Bill proposes that hearings under the new performance procedures will be held in private, at least for the first two years. The Secretary of State made reference to that on Second Reading. It was clear from what she said that her mind was not closed to reconsidering the issue after we have seen how the procedures that we are putting in place today work in practice.

There is an anomaly in the Bill at present. It allows for public hearings at the request of the doctor but not at the request of the complainant. The objection to public hearings clearly does not concern the principle, but who can call for them. If a doctor can ask for a public hearing, it is surely right that the complainant can. That is not an anomaly that destroys the thrust of the Bill, but it is one that we might want to reconsider when we see how the procedures work in practice.

Thirdly, the GMC will be able to postpone investigation of a doctor if related investigations by other bodies are already under way. I understand that that is probably a good—even a necessary—idea if a criminal investigation is under way but surely cases in which criminal investigations are running alongside investigations by the GMC are rare.

It is not immediately obvious why investigations by, say, an employer should lead the GMC to suspend its investigations until the employer's investigations have been completed. That seems to me to be particularly true of the new procedures, which, of course, are intended to be not disciplinary but remedial procedures. It is my view that the GMC should be able to get its investigations under way when it believes it to be appropriate and also at the earliest possible time. I accept the point in respect of criminal investigations but not of other investigations. Delay will undermine the procedures and is therefore to be avoided unless it is absolutely necessary.

Having made those three relatively minor qualifications, on behalf of the Opposition I give the Bill a welcome and wish it a speedy passage into law.

7.33 pm
Mr. Sackville

I shall touch briefly on the points made by my hon. Friends the Members for Croydon, North-East (Mr. Congdon) and for Cambridgeshire, South-West (Sir A. Grant) about triggers and what sort of cases could become subject to these procedures.

Any information about a single case or several cases which would give rise to the suspicion that there was a serious deficiency of professional performance would fall under these procedures. Any departure from good medical practice, whether covered by GMC guidance or not, sufficient to call into question the doctor's registration, that is to say his or her fitness to practise, would fall under the procedures.

The General Medical Council, under these procedures, has to look for a pattern of seriously deficient performance but a single case may be sufficient to trigger the investigation under the new procedures.

On the matter of locums and the need for the NHS to be vigilant, a report of the locums working group, inspired by my hon. Friend the Minister for Health, is now out for consultation. That may address many of the concerns raised by my hon. Friend the Member for Mid-Kent (Mr. Rowe) and by the hon. and learned Member for Montgomery (Mr. Carlile).

With that, I join the hon. Member for Newcastle upon Tyne, East (Mr. Brown) in welcoming the Bill and commending it to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

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