HC Deb 14 June 1995 vol 261 cc863-72

Motion made, and Question proposed, That this House do now adjourn.—[Dr. Liam Fox.]

7.57 pm
Ms Estelle Morris (Birmingham, Yardley)

I am grateful to have the opportunity on an Adjournment debate to talk about the accountability of deputising and locum doctors. Like many matters that are brought before the House by Back-Bench Members, the issue that I wish to raise stems directly from the case of a constituent and her family.

I shall explain what happened, and in so doing provide the rationale for the changes in law that I am requesting. My constituent, Mrs. Hilda Winstanley, died in March after a period of illness with stomach cancer. The family, which was very close to her, chose to care for her at home. Members of the family looked after her carefully, together with their general practitioner and some excellent support from district nurses, throughout the final months of her illness. She lived with her husband, son, daughter-in-law and grandson. It is a close family, the members of which have given each other support. Mrs. Winstanley was 57 years of age and the family had hoped for many more years together. It was a tragic 12 months for them.

On a Friday, the family's GP visited Mrs. Winstanley to monitor progress and to give care, support and medicine. On the Sunday, her condition rapidly deteriorated. Mr. Winstanley called the GP, to find that he had put his calls through to one of the two Birmingham deputising services. A locum doctor attended. What happened in the next six or eight hours left much to be desired. I am not a medical practitioner and I do not seek to lay blame on anyone, but anyone who has read details of the case can surmise only that the quality and standard of care given to Mrs. Winstanley on the final day of her life were not those that she should have been able to have.

Mrs. Winstanley was so ill that she could no longer take a pain-killing drug by mouth. She required diamorphine through a syringe drive, which should have been properly administered to her. For some reason, six hours passed before she was given that drug, which would have alleviated some of her pain. There are many elements of health care that are in question at that point. There is no doubt, however, that Mrs. Winstanley died in agony when she should have died in peace.

Mr. Winstanley graphically described the situation to me, when he told me last weekend that his wife had spent six months pleading with him to help her to live. She spent the last six hours of her life pleading with him to help her to die. That should not have happened. The technology and medicine existed to enable Mrs. Winstanley to die in peace. Mr. Winstanley, who had cared for her lovingly throughout their married life and especially throughout the final six months of her serious illness, feels that he let her down. When she needed help—when she needed a pain-killer—all his attempts failed to get the drug or to get the locum doctor to find it, to administer it to his wife. That is appalling. I think that we would all feel bad about that. We would all wish to God that that need not have been a description of Mrs. Winstanley's last six hours of life.

I make no judgment about who was responsible. It is not my place to do so. Mr. Winstanley felt that the locum doctor was at fault. He had called the general practitioner and he felt that the GP who attended should have been able to get drugs to his wife within six hours.

There are many questions to be answered. Why was the locum doctor not carrying the drug? Why did he not know where to get the drug? Why, eventually, did he write a prescription that was wrong and could not be carried out?

Mr. Winstanley decided to bring a complaint against the GP and referred it in the proper manner to the Birmingham family health services authority. It was only then that he learnt that because the locum was not a principal doctor, he could not bring the complaint against him. Instead, he had to bring it against his GP. That GP was the same GP who had cared for his wife with him for the six months of her illness. He had no complaints against his GP. His GP could not answer the questions that he wished to raise.

I attended the informal hearing of the FHSA with Mr. Winstanley and representatives from the community health council. The family GP was requested to attend, as is normal within Birmingham. As is also normal within Birmingham, he attended. The FHSA had no powers to call the locum doctor to attend the hearing. The result was farcical. In attendance was the FHSA informal panel, myself in support of Mr. Winstanley, the CHC in support of him, Mr. Winstanley and the family GP. The one person who could have answered the questions, the locum doctor, chose not to attend.

I was told clearly during the hearing by the medical member of the FHSA panel that the authority had no powers to make the locum doctor attend. It had requested that he should do so, but for whatever reason, he had chosen not to.

The FHSA's informal hearing could have been a healing process. If Mr. Winstanley had had the opportunity to ask questions and receive answers, he could have begun to understand what went wrong in the care of his wife on that fateful Sunday. He could have then begun the period of coming to terms with his bereavement a little more quickly. We all left the meeting continuing to be dissatisfied with the level of treatment that Mrs. Winstanley had received, not having had the opportunity to ask the questions that needed answering.

We established that if Mr. Winstanley wanted to bring a complaint against the locum, he would have to go to the General Medical Council. With the support of the CHC, he referred his complaint to the GMC. He received a letter two weeks ago from the GMC to the effect that if the council were to consider his complaint, he would have to provide a sworn affidavit. That offended him. I might understand why it asked for a sworn affidavit, but in Mr. Winstanley's mind, the council was almost saying that he might be pretending that certain things had not happened. In coming to terms with the loss of his wife, he feels that he has been insulted.

I know that it is necessary to pay to obtain an affidavit. The procedure may require Mr. Winstanley—he may wish to deal with the matter in this way—to go to a solicitor to get assistance in preparing an affidavit. The process represents another barrier in adequately voicing his complaint. The FHSA would have been a far better forum in which to raise his concerns. It is local. It is in Birmingham, and it took him only 15 minutes to travel to the hearing. The procedure was informal—not everything was written down and recorded. There was an atmosphere conducive to sharing problems and responding to concerns. That was the environment in which Mr. Winstanley wanted his problems raised. The GMC alternative was not acceptable in Mr. Winstanley's case.

As I understand the law, a GP retains responsibility for his patient even if a locum or deputising doctor deals with him or her, unless that doctor is a principal doctor on the list of an FHSA. In Birmingham, there are two commercial deputising services, both of which employ principal doctors and other doctors. When a GP puts through his calls to a locum or deputising service, he does not know whether the GP who is sent to his patients is a principal or non-principal doctor. The calls are allocated on a cab-rank principle. During any one evening or off-duty period for a GP, some of his cases will be sent to a principal doctor and some may be sent to a non-principal doctor.

The results are unsatisfactory for all concerned. Some patients and some families of patients will not be able to bring a complaint against a doctor merely because he or she is a non-principal doctor acting as a locum or deputising doctor. That is something that is out of the control of the patient or his or her family.

It was not Mr. Winstanley's choice to call in a locum doctor who was not a principal. That was the way in which the system worked. That is what the family GP had chosen to do on the day in question. It is unsatisfactory for the patient that there is a two-tier approach to making complaints.

I have been motivated to initiate the debate because of my concerns for the individual patient and for my constituents generally. The more I consider the system, however, the more unfair I feel it is for GPs as well. I concede the principle that a GP should retain responsibility for his patients. I want that principle to be retained, as all of us do who are the patients of a GP. It is best that GPs attend their patients. They have an overall knowledge of patients' treatment and background. They know how they may react to certain circumstances. I do not, however, want my GP on call 24 hours a day. That will not make him a good GP when he is on call or attending his surgery the next day.

The GP's practice was a two-handed practice. I think that it is reasonable that at certain times of the week, for example, on that Sunday, a practice should call on the support of a deputising service. That is reasonable. I do not think that it is reasonable, however, that the GP should retain responsibility for every action of the deputising GP or locum during that period.

Let us think what might have gone wrong in this case. Perhaps the locum was not carrying the correct drugs. Perhaps he had not briefed himself sufficiently on how to get diamorphine on a Sunday in my part of the city of Birmingham. Perhaps he did not make a proper examination of the patient when he arrived and did not make the necessary judgments about what treatment she needed. Perhaps he wrote an incorrect prescription. Whatever it might have been, I do not honestly see how one can hold the family's GP accountable for those actions. It was not a lack of knowledge of the patient or of the background of the family that could have caused that error.

Those are examples of what the locum might have done wrong on that occasion. I think that he should be held to account. That is a principle that all of us try to adhere to in our jobs. Being a GP is an important job. Many of us would consider it to be one of the most important, because one is delivering a service at a time when a person and his or her family are vulnerable. That family was vulnerable at that time. Those people needed the best possible service that medicine could provide, and they did not get it. I feel that that locum, a properly qualified GP, should be held accountable for his actions. It is unfair to hold the family GP accountable for those actions, and it is unfair to deprive my constituent of the opportunity to go to the local family health services authority to try to seek redress.

I ask the Minister to address three items when he replies. First, I should be grateful if he expressed an appreciation of the difficulty that Mr. Winstanley is now in, and an understanding of how Mr. Winstanley feels that the system has let him down, not only medically—I do not think that the Minister is in a position to make a judgment—but it has deprived him of an opportunity to bring his complaint at a local level, in a supportive, informal setting, which the FHSA could have provided. Instead, because of the system, he must approach a bureaucratic organisation—the General Medical Council.

Secondly, I would like the Minister to comment on, or acknowledge, the fact that the family GP was being treated unfairly, in that he was called to a hearing and was held to account for the actions of a deputising doctor—actions that he could not reasonably have been expected to prevent.

Thirdly, I would like the Minister to give some indication that he might agree, after the debate, to reflect on the points that I have made and the issues that I have raised. Perhaps at a later date, after his considered judgment, he will feel it appropriate to change the legislation so that there is an arrangement whereby a local FHSA can hold to account any GP who serves patients on its list, in the same way that it can hold to account a principal doctor who is on its list. That is right for GPs.

More importantly, we all hope that medical mistakes do not happen—it is absolutely crucial that they do not—but if they do happen, and if people feel that they have not received the care to which they are entitled, it should be easy for them to gain redress, to ask the questions, in a local, supportive environment. It was not my constituents' choice to have a locum on that Sunday. My constituents ended up with a locum because of the way in which our health service is structured. It should not have meant that that took away their rights to hold the doctor to account for his actions.

It was a tragedy that my constituent died so young, when there was so much before her, for her and her family. Let us hope that as a result of that tragic death, there is a proper consideration of the problems, and perhaps an indication that we might be able to prevent this from happening to a family in another part of my city, or another part of our country, in future.

8.14 pm
The Minister for Health (Mr. Gerald Malone)

I am extremely grateful to the hon. Member for Birmingham, Yardley (Ms Morris) for putting her case, in which she has been involved for some time, in a highly detailed way, as a constituency Member of Parliament. I thank her for raising it in that way and for the way in which she made specific requests of me, to which I shall respond at once; I shall then go on to the more general matters that underlie the points that she raised.

I believe that there is a slightly more complete version of the procedures, which I shall set on the record and which I hope the hon. Lady will find helpful. I hope that her constituent will find it helpful as well.

I shall immediately respond to the hon. Lady's request that I express some appreciation for the position of her constituent, Mr. Winstanley, and I do so on two grounds: first, to express sympathy for the predicament in which Mr. Winstanley and his family found themselves following the tragic circumstances of the death of Mr. Winstanley's wife. That is clearly something that I understand in seeing a lot of what goes on in the health service. It is unusual, but it is a sad personal tragedy. I extend my sympathy to Mr. Winstanley.

I appreciate how someone in Mr. Winstanley's circumstances can find it daunting to have to go through formal procedures if they are to get their point across. That is why I hope that the hon. Lady will be satisfied if I explain where we are, and what changes are in hand about complaints, the Wilson report, which is now being considered, and say that we recognise that one of the most important things when somebody has been affected by the health service and is at a time of crisis is that we make the system as simple and as accessible as possible so that the circumstances can be fairly investigated and that person can get his or her points across.

The second point about which the hon. Lady asked me to say something concerned the family GP being unfairly treated. I cannot comment on that and I do not intend to do so. The intention of what I say will be revealed in my remarks about why it is important that ultimate responsibility must reside with a GP, and it is up him or her to decide how services, out of hours, principally, are provided by locums, deputising services or, indeed, co-operatives. I cannot respond as positively to the hon. Lady's second request.

On the hon. Lady's third point, of course I shall reflect on what she has said. What she has said about how her constituent has been affected by this tragic incident is extremely important when dealing with practical matters. I shall reflect on that, although I cannot give an undertaking to change legislation during this Adjournment debate, and she would not expect me to do so, but when I look at other matters in connection with complaints, I shall bear in mind all that she has said. After all, I am more interested in the practicalities of how all these procedures are brought forward rather than in their theory. They are designed to meet practical cases and practical needs.

Perhaps it would be helpful to the House if I set out a number of the principles and the detail involved in matters of this kind. Clearly, all patients must be confident that they are receiving services that are appropriate and to a proper standard. That is probably a matter beyond dispute. They must be assured of that, whether it is their own GP or a deputy who is treating them. It will not always be their GP. As the hon. Lady quite rightly pointed out, we cannot expect everybody to be on call 24 hours a day, seven days a week, 365 days a year. That is why there are very firm and detailed arrangements in place to allow out-of-hours cover to be provided by people other than the person's GP.

I am pleased to be able to confirm that those principles are already firmly in place. That is the case already and it will continue to be so. Indeed, we propose changes to the NHS complaints procedures to which I have alluded, which will, I believe, strengthen the relationship between GPs and patients.

I was struck by what the hon. Lady said about the relationship that exists between her constituent and his GP. It may be helpful if I describe in general terms how doctors providing general medical services—GPs, in layman's language—are accountable for their actions. That happens in three ways. First, they must provide the full range of services covered by their contract with the national health service. It is important to remember that GPs are independent contractors, and that the arrangements between family health services authorities and doctors for the provision of general medical services are clearly laid down in the National Health Service (General Medical Services) Regulations 1992. A GP's terms of service are contained in schedule 2 to those regulations. So GPs are tied down by regulation in terms of what they have to provide.

Secondly, a GP must provide services to the appropriate professional standards, which are not left undefined; guidance on standards of professional conduct and medical ethics are provided by the General Medical Council. Thirdly, doctors must not be negligent in providing services. A failure in that respect would allow somebody who had suffered from negligent treatment to have access to the courts.

That three-pronged approach to ensuring that the services are specified and that someone is responsible for the way in which they are delivered means that patients will have effective redress against any doctor who delivers inadequate general medical care, even if that doctor is not their GP. I believe that that principle serves patients' interests well.

The hon. Member for Yardley is right to say that I do not want to enter into the details of the particular case that she described. Indeed, she would not expect me to do so, partly because it may, and probably will, be subject to proceedings elsewhere. However, in general terms, when a patient is worried about the actions of a deputy or locum there are three ways in which he may take action.

If the deputising doctor, even though not the patient's own GP, is a GP working in practice, the patient can make a formal complaint to the FHSA about him or her. That is relatively new, and we changed the regulations fairly recently in response to suggestions that it would be a sensible practical arrangement.

Even if the deputy is not a GP, the patient can still make a complaint to the FHSA about the deputising arrangements provided by his or her own GP, who can then decide what action to take against the deputy. Ultimately, the GP must have the responsibility because GPs take the decisions about whether to allow someone to stand in on their behalf.

I should like to add one important fact to which the hon. Lady did not refer: GP practices are, of course, required to include in their practice leaflets the arrangements for providing medical services when the doctors are not personally available. In normal circumstances, if there is a proper flow of information between GP and patient, it will be clearly understood what arrangements are in place. Whether there is an arrangement with a deputising service or with a co-operative of FHSA doctors in the area, or any other arrangement, it should be brought clearly to the patients' attention.

If the patient believes that the doctor has breached professional standards, that is a different matter. Whatever the status of the doctor—whether he is an FHSA practitioner, a locum or somebody working in a deputising service—the patient can make representations directly to the General Medical Council.

I heard what the hon. Lady said about the difficulties that her constituent had had in trying to do that. Indeed, it is a difficult thing for someone in tragic circumstances to do. However, I ask the hon. Lady to understand the other side of the coin. A complaint to the GMC about any medical practitioner is a serious matter, and everybody must be concerned to ensure that proper procedure is followed. It is not a bad idea to allow the GMC to deal right at the beginning with what may be frivolous or ill-intentioned complaints—although of course I do not make that suggestion in connection with the case that the hon. Lady has described. The GMC must ensure that everything is well founded before a case is taken further, and that is probably a sensible provision.

The GMC is the regulatory body for the medical profession and approaches questions concerning shortcomings in doctors' performance from the perspective of professional standards. That path is currently being strengthened by the Government through the introduction of the Medical (Professional Performance) Bill, which received its Third Reading in the House on Monday this week, and which will change the way in which the General Medical Council can consider a doctor's performance.

That is a parallel point but still an important one, because it illustrates how concerned the House and the Government are on a continuing basis with such issues. The new legislation is important because it will enable the GMC, for the first time, to examine doctors' performance and to require them to undergo retraining. That change does not exactly answer the hon. Lady's concern, but it is a step in the right direction.

In the third instance—if the doctor has been negligent—whatever else happens, the patient will continue to be able to seek redress directly through the courts. I believe that those arrangements properly reflect the way in which family doctor services are provided.

Family health services authorities make arrangements with self-employed medical practitioners for the provision of general medical services in their localities, and family doctors' terms of service with the NHS require them to ensure that all patients registered with them have access to general medical care 24 hours a day. To dilute that responsibility would be a serious step, whose consequences might not be entirely desirable.

Clearly, the hon. Member for Yardley is especially interested in deputising and the FHSA "list". Of course GPs do not have a responsibility to deliver care personally 24 hours a day. They may delegate responsibility for patient care to another doctor acting as a deputy. Often that will be a colleague in the same practice, or in a neighbouring practice—increasingly, doctors are working on a co-operative basis—or it may be someone employed through a commercial deputising service.

The individual practitioner must decide how best to provide for the needs of his or her patients. The best way can vary across the country. In some areas, a co-operative may be more suitable; in others, that is not practicable, so a deputising service is used. I know that the practice in the case under consideration was not large, but in a large practice it is sometimes possible to deal with the responsibility within the partnership itself.

However, a GP on the FHSA list will be held responsible for ensuring that the appropriate services are provided to the patient at all times. That ensures that any deputy used will be suitably qualified in the demands of general practice. The responsibility rests firmly with the doctor within the FHSA, who is primarily accountable for his or her patient's care.

Where a commercial deputising service is used, we have instituted extra safeguards, which I would like to take the opportunity to place on the record. Responsibility for monitoring the standards of such services rests with individual family health services authorities. Family health services authorities also ensure that the extent of their use by individual doctors is reasonable, and satisfy themselves that arrangements for their use have proper regard to the interests of patients and doctors alike. There cannot be a simple resigning of responsibility to a service over which there is no control, and clearly the FHSA takes a close interest in the standards of such services.

None the less, individual general practitioners provide patient care, and it is they who decide whether to employ a commercial deputising service. Doctors employing such services must accept personal responsibility if the doctor working for the deputising service is not on a family health services authority medical list. If that doctor is not on an FHSA list and the FHSA has no control of the quality, unless the GP took on the responsibility there would be a dangerous gap, which must not be allowed to open.

Ms Estelle Morris

I take everything that the Minister has said so far and I approve of the legislation that has just gone through Parliament in relation to extra powers to the General Medical Council. However, he has not yet dealt with one principle that the lay person finds difficult to understand: how does the Minister justify the fact that a professional, properly qualified person going about his job should not be held personally accountable for the way in which he does that job?

I understand the point about the contractual arrangements: a general practitioner would be at fault if he had not contracted properly for adequate cover while he was out of the city or unavailable and if he had used a practice that was not approved by the family health services authority. The Birmingham deputising service, however, is approved by the FHSA. The Minister has not yet dealt with the kernel of the issue: how come we have a system where professionals can pass off responsibilities for their professional action to another person? It is as simple as that for my constituents.

Mr. Malone

I am not quite certain that I have understood the hon. Lady. I thought that she started out by asking: how come, say, a deputy could manage to slip away from responsibility?

Ms Morris

indicated assent.

Mr. Malone

I have understood the hon. Lady's point. As I have explained, the answer is that that person cannot slip away from that responsibility. Let us take not a precise case but a fictitious case of a deputising doctor who, it is clear, has committed an act of negligence. If he does come within the FHSA, the right of redress is available in a number of ways. The first is through the courts. If the matter involves not purely negligence but professional misconduct, it can be raised with the GMC.

The hon. Lady's complaint is that a lot of that is extremely complex. Perhaps in her eyes it is not an entirely satisfactory way of dealing with the matter; she has explained that her constituent is deeply troubled and does not wish to go through those routes. I remind her, however, that there are two other routes. There is the informal process, which I understand has been tried in this case, with few powers of compulsion. The reason for that is that it is designed properly to be a dispute resolution that remains as close as possible to the patient.

An informal process, however, requires the co-operation of all those involved. Let us say, for example, that a complaint had been made against an FHSA-registered general practitioner. There is no compulsion in ensuring that the FHSA is involved in the informal process. As a principle, that could cause difficulties. There is the more formal route to sort out a formal complaint. It is then the GP principal, who has passed on the responsibility, who has to involve the deputy or locum who has been accused of misconduct or malpractice, bringing him into the system.

In the current context, it is not possible to leave a gap where the ultimate responsibility must be in the hands of the GP principal who assigns the obligation temporarily to someone out of hours.

Ms Morris

I should like to raise two points and perhaps to fill in a bit of background. Having spoken to the FHSA, I understand that it is common practice and the done thing in Birmingham—although at an informal hearing this is optional—for doctors to attend the informal session. That is much to be praised. They turn up voluntarily; that is the cultural background against which this incident has happened and that needs to be understood. The comparison with the GP who was a locum and who refused to turn up was unheard of. There are not other cases where that has happened if a principal doctor is involved.

Secondly, I hope that the Minister appreciates that, as politicians, it is always right for us to set structures and formalities. There is a danger, however, that sometimes we believe that structures will answer problems. Sometimes it is the informal nature of a setting, the way in which one can talk and discuss and the healing process—I have used that phrase before—that do the good.

The informal hearing of the FHSA seemed a better atmosphere and environment in which to begin to sort out such a problem. I thought that it was a shame that someone should be forced to go to the more formal setting when an informal setting might have been satisfactory. It is a tragedy that patients are deprived of the informal setting and opportunity in cases involving a locum doctor who is not a principal practitioner.

Mr. Malone

I agree with the hon. Lady and I am delighted to hear that, in Birmingham, it is the general practice that informal proceedings work and that all participating parties attend and attempt to resolve matters in that way. That is clearly the best way, but one is always obliged, within an informal setting where there is a process, to understand that someone may not want to participate in that process. People may feel that they are at some risk and that some facts will be adduced at the informal hearing that could be used against them. One can understand that.

Often, one cannot compel everyone, by the logic of it, to attend an informal hearing. People may think that matters of substance are at risk in terms of their career if they happen to be a doctor. They may want everything to be done formally, where rules of evidence apply more strictly. I agree with the hon. Lady, however, that, where possible—this is the whole point about introducing informal procedures under formal structures where one gets proper rights of address if matters are in dispute—such things should be encouraged. I am delighted to hear that, in the main, they work well in Birmingham. All those who contribute to that are to be congratulated.

I concede that formal FHSA procedures can appear daunting, not just to patients but often to GPs. In response to that, the Government have published, as the hon. Lady is aware, proposals for a new complaints procedure for the NHS which will be implemented from April 1996. The current complexity of the formal complaints procedure will be replaced by a system that is simpler and fairer to patients, practitioners and staff. All in all, that represents an impressive array of safeguards that ensure that all doctors, including deputies, are accountable for the care that they deliver. That is one of the great strengths of general practice. We are continuing to build on that.

I say again to the hon. Lady that I am sorry that, in the case of her constituent, we did not already have in place the new procedures which could have been more effective in resolving the problems that he has faced. I again reiterate my personal sympathy for him and his family, in what has clearly been a difficult time. I am sure that the matters that the hon. Lady has raised will inform the debate about how the new procedure becomes embedded and that this difficulty will be taken into account. I give her an undertaking that I shall ensure that that happens.

I hope that, by other means, the hon. Lady's constituent is able to gain some degree of satisfaction or at least an understanding of what took place at that terrible moment in the family's life. I congratulate her on representing her constituent's case in such a constructive and purposeful way so that his particular dilemma may be resolved, There could also be some lasting benefit from drawing the matter to the attention of the Government as we move forward in that area.

Question put and agreed to.

Adjourned accordingly at twenty-three minutes to Nine o'clock.