HL Deb 22 October 1946 vol 143 cc486-568

House again in Committee (according to Order):

[The EARL OF DROGHEDA in the chair.]

Clause 20:

Proposals for provision of services by local health authority.

20.—(1) Every local health authority shall, within such period as the Minister may by direction specify, submit to the Minister proposals for carrying out their duties under the next following eight sections of this Act.

The Minister may specify different periods under this section for proposals relating to duties under different sections.

(2) Not later than the day on which the proposals are submitted to the Minister, the local health authority shall serve a copy thereof—

  1. (a) on every voluntary organization which to the knowledge of the local health authority provides in the area of the authority services of the kind dealt with in the proposals, and
  2. (b) on the executive council (as constituted under Part IV of this Act), and the Regional Hospital Board for any area which consists of or comprises the area of the local health authority or any part thereof, and the Board of Governors of any teaching hospital situated in the area of the local health authority; and
  3. (c) on every local authority for an area forming part of the area of the local health authority;
and any such voluntary organization, council, Board or authority, may within two months of the service on them of a copy of the proposals make recommendations to the Minister for modifying the proposals.

2.37 p.m.

LORD HENLEY moved to insert, at the end of subsection (2), "and shall simultaneously send a copy of such recommendations to the local health authority." The noble Lord said: Clause 20 in this subsection provides that every local authority—that is, the county councils and the county borough councils—shall submit to the Minister proposals for carrying out the various duties in connexion with the health centers, care of mothers, midwifery, and so on, and that they shall also serve a copy of these proposals on every voluntary organization which functions in their area in connexion with these services, and upon the executive council, the Regional Hospital Board, and other bodies interested in the proposals. Subsection (2) goes on to say that these voluntary organizations, council, board, or authority can make recommendations to the Minister to modify the local health authority's proposals; and the Minister may approve them. It would seem only fair that these authorities who propose to modify the original proposal should serve notice of their counter-proposals upon the local health authority. All the more is it necessary that they should do so because subsection (3), says that—the Minister having approved the proposals— it shall be the duty of the local health authority to carry out their duties under the next following eight sections in accordance with the proposals submitted and approved for their area…. As a specific order is made that notice should be given in the one case, it seems reasonable that notice should also be given in the other. I therefore beg to move.

Amendment moved— Page 19, line 25, at end insert ("and shall simultaneously send a copy of such recommendations to the local health authority.") (Lord Henley.)

LORD ADDINGTON

I rise to support this Amendment on behalf of the municipal authorities. It seems to me a very necessary point of detail machinery, and I hope it will be quite non-controversial. It ensures that the observations of the local authority will be considered by the Minister almost at the same time as recommendations of the other bodies regarding them. It also ensures that the local health authority shall be made aware of the recommendations the other authorities have proposed. I very much hope the Government will be able to accept the Amendment.

THE POSTMASTER-GENERAL (THE EARL OF LISTOWEL)

The effect of this Amendment has been quite correctly described by the noble Lord opposite. It is to oblige any voluntary organization, executive council, Regional Hospital Board, board of governors of the teaching hospitals, or minor local authority, objecting to the local health authority's proposals for carrying out their duties under Part III of the Bill, and requesting the Minister to alter these proposals, to send a copy of their requests direct to the local health authorities. It is rather doubtful whether this Amendment is really necessary, because it is inconceivable that the Minister would modify the local health authority's scheme for running these ser vices in Part III in the light of objections lodged by other authorities in the area, without giving the county council or county borough council in question a fair chance of commenting on the views of their critics. I think the fear expressed by the noble. Lord opposite is altogether unfounded.

On the other hand, it may be said that the local health authority would receive notice sooner if they heard direct from the other bodies than if they had to wait until they received an intimation of the objections from the Ministry. Again, it would be certainly an act of courtesy on the part of these other bodies, and, as we have often found in your Lordships' House, these small acts of courtesy tend to promote good relations between all concerned. I would, therefore, be most willing to accept the substance of the noble Lord's Amendment if he would be good enough to allow me to examine the wording and to put forward an identical or similar Amendment at a later stage in the Bill.

LORD HENLEY

With that assurance. I shall be very willing to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clauses 21 and 22 agreed to.

Clause 23:

Midwifery.

(2) It shall be the duty of every local health authority to secure, whether by making arrangements with voluntary organizations for the employment by those organizations of certified midwives or by themselves employing such midwives, that the number of certified midwives so employed who are available in the authority's area for attendance on women in their homes as midwives, or as maternity nurses during childbirth and from time to time thereafter during a period not less than the lying-in period, is adequate for the needs of the area.

2.42 p.m.

THE EARL OF MUNSTER moved in subsection (2), after "arrangements," to insert "with hospital management committees, boards of governors of teaching hospitals and". The noble Earl said: This Amendment is one which your Lordships will observe deals with the question of midwives. The first subsection of this clause makes the local health authority the supervising authority for the purposes of the Midwives Acts, 1902 to 1936. The second subsection lays upon the local health authority the duty of securing that the provision of midwives for attendance on women in their homes is adequate. For that purpose it enables the local authority to make arrangements with voluntary organizations for the employment of midwives. The object of my Amendment is to enable the local health authority also to make arrangements with maternity and general hospitals as well as with voluntary organizations. I think it would be understood that as voluntary hospitals to-day will no longer be voluntary hospitals under the Act, the local health authority will be unable to make arrangements with them for the provision of domiciliary midwives, unless of course the powers of the local health authority are widened as I propose in my Amendment. I do not want to weary your Lordships with a long explanation of this Amendment, particularly in view of the appeal of the noble Lord, Lord Ammon, but I think I have very good substance for including these words in the clause and confidently submit the Amendment to the noble Lord. I beg to move.

Amendment moved— Page 21, line 36, after ("arrangements") insert ("with hospital management committees, boards of governors of teaching hospitals and").—(The Earl of Munster.)

THE SECRETARY OF STATE FOR DOMINION AFFAIRS (VISCOUNT ADDISON)

As the noble Earl is aware, the teaching hospitals have arrangements for attending cases in their own homes sometimes with teaching students and sometimes without. It is likely that arrangements might have to be made with respect to the boards, and if the noble Earl will allow me to hold this over I shall be very glad to look into it in a friendly way to see if we can adopt some words that will be acceptable on the Report stage.

THE EARL OF MUNSTER

I am obliged to the noble Viscount and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24:

Health visiting.

24.—(1) It shall be the duty of every local health authority to make provision in their area for the visiting of persons in their homes by visitors, to be called "health visitors", for the purpose of giving advice as to the care of young children, persons suffering from illness and expectant or nursing mothers, and as to the measures necessary to prevent the spread of infection.

2.47 p.m.

VESCOUNT MAUGHAM moved, in subsection (1), to insert "as to" before "persons suffering from illness." The noble and learned Viscount said: This is only a question of drafting. It was brought to my attention that as the clause is drawn the health visitors could be giving advice not only as to the care of young children but advice to every medical practitioner who was attending with a desire of helping those who are suffering from illness. I do not think it can be intended that the visitors, who may be laymen appointed by local health authorities, should interfere between a doctor and his patient. I imagine that this was drafted with the notion that there should be a comma after "young children" cannot help thinking that that was the object of it, because commas do not appear in an Act of Parliament, although they do very often appear in the documents we have before us. I strongly urge the Government not to empower health visitors either to interfere with persons suffering from illness or, without any request from an expectant mother, to walk into a house and say: "We understand you are an expectant mother and we desire to give you advice." The first provision is reasonable enough, as to the care of young children. I do not think anybody objects to visitors having a chance of going in and advising as to the care of young children. But the other two matters, expectant mothers and persons suffering from illness, should not be the subject of unsolicited advice. I beg to move.

Amendment moved: Page 22, line 11, after ("children") insert ("as to").—(Viscount Maugham.)

LORD LLEWELLIN

I know there is some concern as to the effect of the words if they are left in the Bill as at present drafted. I do not suppose it is intended by these words that persons who are not duly qualified medical practitioners should be appointed to go and look after persons suffering from illness. I know the view quite widely held is that these words, if they are left as they are at present, might be held to justify that. I suppose that is the only point To leave out the words "the care of" before "persons suffering from illness" and to put in instead "the purpose of giving advice as to" would be thought to make it quite clear that we were not going to have health visitors prescribing or treating people in a medical manner. I do not suppose it is anybody's intention to do so. However, the words have given that impression among a large proportion of the medical profession, and they want to be clear that that is not the meaning of the words as set out in the Bill.

THE LORD CHANCELLOR (LORD JOWITT)

I wish I had heard the explanation which the noble Viscount who moved the Amendment and the noble Lord who has just spoken gave. I have racked my head as to the point of this Amendment and I confess I did not know it. In so far as it is a matter of grammar, perhaps it is the fault of our English language that it has not got inflections. If we had been translating this into Latin "young children" would have been in the genitive; so would "persons suffering from illness" and so would "expectant or nursing mothers." The sentence would read, set out at length, in this way: "… as to the care of young children, as to the care of persons suffering from illness and as to the care of expectant or nursing mothers." I venture to think that "as to," unless you have the full business about "as to the care of," is not an improvement on the drafting.

So far as the substance of the thing is concerned, the matter stands in this way. Health visitors are, of course, not doctors; they are the analogue of the district nurse, who goes round, sees people, looks after them and so on. I can give an assurance most readily that these people will not come between the doctor and the patient or anything of that sort. That is not the intention of the thing at all. Neither will they go round and give unsolicited advice, pushing their way into the house and saying "Hallo, you are a nursing mother; I had better see about you." They obviously would not behave in such a fatuous way as that. They would be very much like a district nurse; they would, of course, act under a doctor's instructions, if there was a doctor attending the case, and generally do what they could with regard to the care of young children—of course, they could not do that without the parents' consent—and also of persons suffering from illness, and of expectant or nursing mothers. I suggest to your Lordships that we had better leave the words as they are.

VISCOUNT MAUGHAM

I would not like to set myself up as an authority on English, but I am perfectly clear that as the clause stands it means "giving advice as to the care of young children, as to the care of persons suffering from illness and as to the care of expectant or nursing mothers." I think that is a most offensive clause. I am not sure that the clause in any case is a very good one, even with the alteration, but to say that health visitors are to visit persons suffering from illness—say a person who has influenza or some serious illness such as scarlet fever—and are to attend to their health and to give advice as to their care when they are being attended by a doctor, does not seem to me to be reasonable in the least. I cannot believe—and I am not sure that I understood him to say the contrary—that the Lord Chancellor had any real doubt as to the meaning of this clause as it stands or that he had any doubt as to the effect of adding the words "as to", which cut out the words "care of" as a precedent phrase to "persons suffering from illness or the care of expectant or nursing mothers." This is once more a case where the Government wish apparently, if I rightly understand the noble Lord, to have the right to intervene—the right to intervene—by health visitor between doctor and patient. That is a thing which the Lord Chancellor suggests to us they never would be likely to do, but why should they be given the right to do it? That is what I cannot understand. It is one more interference with the liberty of the subject.

THE LORD CHANCELLOR

There really is no intention of giving them the right to do that at all. They provide health visitors and the health visitors have not the right to force their way into a house.

On Question, Amendment negatived.

Clause 24 agreed to.

Clause 25 agreed to.

Clause 26:

Vaccination and Immunization.

26.℄(1) Every local health authority shall make arrangements with medical practitioners for the vaccination of persons in the area of the authority against smallpox, and the immunization of such persons against diphtheria.

(2) Any local health authority may, and if directed by the Minister shall, make similar arrangements for vaccination or immunization against any other disease.

THE EARL OF LISTOWEL moved, in subsection (2), after "may", to insert "with the approval of the Minister." The noble Earl said: The object of this Amendment is to ensure Ministerial approval for the exercise by the local health authority of the power to arrange for vaccination or immunization against diseases other than smallpox and diphtheria, which are dealt with quite separately in subsection (1) of this clause. It is desirable for the sake of proper and satisfactory co-ordination of the health services.

Amendment moved— Page 22, line 29, after ("may") insert ("with the approval of the Minister").—(The Earl of Listowel.)

LORD LLEWELLIN

I understand that this does not detract at all from the powers that local authorities already have under Section 133 of the Public Health Act, 1875. They have always had to get the consent of the Local Government Board or, since its decease, of the Ministry of Health. I think it is right that there should be some central direction before different councils go in for perhaps particular fads which have not been properly tried out. We have no objection to these words being inserted.

On Question, Amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 agreed to.

Clause 28:

Prevention of illness, care and after-care.

28.—(1) A local health authority may, and to such extent as the Minister may direct shall, make arrangements for the purpose of the prevention of illness, the care of persons suffering from illness or mental defectiveness, or the after-care of such persons, but no such arrangements shall provide for the payment of money to such persons, except in so far as they may provide for the remuneration of such persons engaged in suitable work in accordance with the arrangements.

2.57 p.m.

THE EARL OF LISTOWEL

The Amendment which I move to this clause follows the same principle as has already been adopted in Clause 26. It means that Ministerial approval is necessary for a local health authority's arrangements for the prevention of illness and for the care and after-care of the sick.

Amendment moved— Page 23, line 10, after ("may") insert ("with the approval of the Minister").—(The Earl of Listowel.)

On Question, Amendment agreed to.

LORD AMULREE moved, in subsection (1), after "purpose of," to insert "the care of the aged,". The noble Lord said: I move this particular Amendment because I am very anxious that the care of old people should be placed directly under the control of the health authority. It is quite true that the Bill provides that all sick people should be so taken care of, but the thing of which I am frightened is this. If we attempt to separate those old people who are sick from those old people who are healthy we shall get into great difficulty and trouble. When one becomes very old the dividing line between sickness and health is extremely small, and if there is to be any kind of barrier at all between the two conditions I think the care of the older people will tend to suffer.

The question is one of quite large proportions because the number of people one can call elderly is growing very rapidly now. I do not want to bother your Lordships with a great many figures, but in the past fifty years the number of people turned sixty-five in this country has increased from about 2,000,000 to about 6,000,000, and we are told that in the course of the next five or six years we may expect about another 2,000,000, bringing the figure to about 8,000,000. I do not want to suggest for a moment that the bulk of those people turned sixty-five will be in need of any care or attention at all. A very large proportion of them will be perfectly well and healthy, but there is bound to be quite a number who will need to be taken care of in some sort of home, either voluntary or public. That number will, I think, get bigger because of the changed social conditions. Whereas in the past it was frequently possible for people who were elderly to obtain the services of a nurse or of a servant who could take care of them in their homes, now it is very difficult, and one finds more and more people needing some kind of institutional care. One of the troubles about that will occur if those homes or institutions, or what ever they may be called, do not come under the health authority.

May I briefly illustrate that by two things I have come across rather recently where there have been two sets of homes set up which were purely for healthy people? In the course of a fairly short time the people who set them up found that some kind of sick quarters were necessary because it is very hard to separate the really healthy old people from the sick. Because of that fact you will have to have some kind of provision for the sick. One can, I think, be not too frightening when one says that the danger from that is very real and very clear. That does not exist at the present time, but I think that if you do get sick quarters put up in some homes for old people, in the course of time they will tend to be kept there rather than be removed to the hospital where they can get proper treatment. Because of that there is perhaps a danger that the very unpleasant and hideous Poor Law infirmary may begin to come up again. It is for that reason, and for that reason alone, that I would like to think that the Government will be able to see their way clear to include some sort of provision for old people. I beg to move.

Amendment moved— Page 23, line 12, after the first ("of") insert ("the care of the aged,").—(Lord amulree.)

THE EARL OF LISTOWEL

I think we all realize how very strongly the noble Lord opposite feels about the plight of old people. His speech on the Second Reading is fresh in all our memories. The noble Lord, I am sure, will observe that his expression "the aged" covers both those who are sick as well as those who are in a normal state of health. I hope the House is satisfied that the aged sick are already provided for elsewhere in the Bill and, provided the House and the noble Lord opposite are both satisfied, I do not think I need go into the details that are incorporated with that object in the Bill. So far as the care of the aged who are not sick is concerned, it is surely a subject which is outside the scope of the present Bill. I can assure the noble Lord opposite that it will be dealt with in the forthcoming legislation for the abolition of the Poor Law. We regard that as amongst the most important social reforms we hope to carry out, and it is part of the plan for providing security from want to which I think all parties in the State are committed. I am sure the noble Lord will perceive that his Amendment as it stands will take us very far beyond the limits of the Bill which deals with public health.

LORD AMULREE

I would like to thank the noble Lord for what he has said, and in view of the remarks about the forthcoming Bill to abolish or take away the Poor Law I am very pleased to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.4 p.m.

THE EARL OF MUNSTER moved, in subsection (1), to leave out "of persons suffering from illness or mental defectiveness, or the after-care of such persons" and insert "of mental defectives or the after-care of persons who have suffered from illness." The noble Earl said: This Amendment is somewhat similar to that which was moved by the noble and learned Viscount. Lord Maugham. Under this clause as it stands, the local authority may, and if they are directed by the Minister they shall, make arrangements for the care of persons suffering from illness. It would be possible for the obligations of a local health authority to be fulfilled by the introduction of a whole-time salaried medical service. I do not believe that that is the intention of the Government, but if it is it does seem to me that this clause should be amended to preclude the possibility that it may be interpreted by a local health authority as authorizing the establishment of a salaried medical service side by side with the general practitioner service which it is the duty of the executive council to provide. As I say, I do not think it is their intention but I should like some assurance from the noble Earl. I beg to move.

Amendment moved— Page 23, line 12, leave out from ("care") to ("but") in line 14 and insert ("of mental defectives or the after-care of persons who have suffered from illness").—(The Earl of Munster.)

THE EARL OF LISTOWEL

I can assure the noble Earl, as I did on Second Reading, that it is not the intention of the Government to introduce a full-time salaried medical service. I think he will be perfectly satisfied from the fact that when I studied his Amendment I had no idea of the consequences he had in mind. The clause as it at present stands could not possibly give effect to such an intention, even if that had been the intention of the Government.

THE EARL OF MUNSTER

I would like to know what the noble Earl really does mean when the clause says: A local health authority may, and to such extent as the Minister may direct shall, make arrangements for the purpose of the prevention of illness, the care of persons suffering from illness.…

THE EARL OF LISTOWEL

I really think that the purpose of this clause is quite simple. It simply sets out the duties of the local health authority and specifies a whole list in subsection (1). I am afraid I must have misunderstood the noble Earl in moving this Amendment. I will not go into the effect that the Amendment will have on the clause and on the operation of the Bill unless he desires me to do so, but if he would care for me to deal with this Amendment on its merits and apart from the consequences, I assure him I am prepared to do so.

THE EARL OF MUNSTER

I am much obliged to the noble Earl. I wanted to know what arrangements the local authority may make, and shall make if the Minister so directs, for the care of persons suffering from illness. I may be very stupid but I do not see what arrangements they have got to make.

VISCOUNT MAUGHAM

May I add a word to what my noble friend has said? Arrangements for the care of persons suffering from illness must mean appointing medical men. You would not appoint anybody else except a medical man. If you appoint medical men to have the care of persons suffering from illness—and the words are not in any way restrictive—surely that involves great interference with the medical profession in the ordinary way. I quite accept the view that that is not in the least the intention of the Government, but again and again in relation to this Bill the very wide clauses put powers into the hands of the Government or of the local health authorities which they are not intended to have. Surely it is quite possible for the Government before the Report stage, to consider whether those words do not require some qualifying observation to show that they are not intended to authorize health authorities to appoint medical men in reference to the illness of people in their area, and presumably to give medical advice.

LORD LLEWELLIN

I think that what is the concern of some of us is this, that the real care of persons suffering from illness, after this Bill is passed, will rest primarily, or at least at the first stage, in the Minister, and then in the Regional Boards. If we have these words, are we in danger of having, side by side with the Regional Board, a local authority set up doing the same thing? What can the local authority do in regard to the care of persons suffering from illness other than providing them with hospitals; other than providing them, with medicines, or other than providing them with medical treatment? I am asking this in quite a friendly way. By these broad words I think we shall be liable to make local authorities think they have the powers for setting up some rival authority to the Regional Board organization. That is what is in our minds.

THE EARL OF LISTOWEL

I think that the noble Lord has put the point extremely clearly and with his usual lucidity. I will do my best to answer in equally explicit terms. The point really is this: that there are people who need care in their homes during the course of their illnesses as well as after, but not I think the sort of care which certain noble Lords seem to have in mind. The meaning of the expression "after-care" in this clause is the care which is going to be involved after hospital treatment; not care after the patient is finally cured. There are a number of things that are essential to speed up recovery and prevent the spread of infection which people do need before they are completely well. For example, take the case of a woman suffering from tuberculosis. Bedding would be needed to enable her to live apart from her family while waiting for a place at a sanatorium. This would be provided by the local authority. It is not necessary for the doctor to provide this particular facility. I think that if noble Lords consider this they will see that there is a range of needs which ought to be covered in this particular way.

VISCOUNT SIMON

With very great respect to the noble Earl and with regard to what he has said as to the meaning of "after-care," may I say that we all follow his explanation but it really has nothing to do with what he was asked? He was not asked to explain "aftercare" as it appears in line 14; he was asked to explain the words "care of persons" which appear in line 12. It is no good, speaking as clearly as he does, explaining "after-care" when what we want to know is what is meant by this care which is not "after-care."

VISCOUNT ADDISON

There really are hundreds of ways in which sick people need attention. Matters which readily occur to the mind are hot water bottles, health visitors, the provision of bed linen and various other services which people need in order to assist their recovery to health. It is to secure that services of this kind are made the duty of the general health scheme that these words are deemed necessary.

THE EARL OF MUNSTER

I readily accept the explanation which the noble Viscount has just given. Perhaps I may have an opportunity of consulting with him privately to see if there is not some other and sinister object behind this. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 28, as amended, agreed to.

Clause 29 agreed to.

Clause 30 agreed to.

Clause 31:

Executive Councils.

(3) Where it appears to the Minister that owing to the special circumstances of the area for which an executive council has been or is to be constituted under this section it is desirable to vary the constitution of that council, he may by order provide for such variation:

Provided that before making any such order with respect to a council already constituted, he shall consult with that council, and in making any order under this subsection he shall have regard to the desirability of maintaining, so far as practicable, the same numerical proportion as between the members appointed by the several authorities and bodies mentioned in the Fifth Schedule to this Act.

3.13 p.m.

LORD LUKE moved, at the end of subsection (3), to insert: and in any case the proportion of the whole number of members of the council to be appointed by bodies representing medical practitioners, dental practitioners and persons providing pharmaceutical services shall not be less than the corresponding proportion under paragraph 1 of the said Fifth Schedule.

The noble Lord said: In setting up the executive councils it is felt to be desirable that there should be included in the Bill a provision to secure that in any Ministerial order of variation the existing proportions of professional members should be retained. It is the object of my Amendment to maintain this proper balance. In the Bill as it stands it is stated that the Minister shall have regard to the desirability of maintaining it so far as practicable. I should have thought that if it is necessary to vary the constitution of the council, it is still possible to do it without varying the proportions. I may say that if the proportion of the professional members as set out in the Fifth Schedule are agreed to be reasonable it might be considered reasonable to retain that proportion in any other variation. I beg to move.

Amendment moved— Page 24, line 34, at end insert the said new words.—(Lord Luke.)

THE LORD CHANCELLOR

There is nothing sinister in this, I can assure the Committee. The trouble as regards this Amendment is that you are liable to get exceptional cases where, owing to the smallness of an area or the sparseness of its population, it is difficult to get an effective council of twenty-four. Consider the case in an area where it is possible to get twenty-four and a chairman. Of the twenty-four, twelve are appointed as representing one side, that is eight by the local authorities and four by the Minister. The other twelve are divided as to representation between doctors, dentists and pharmacists. Now suppose you found it difficult to get your seven doctors or three dentists and so on and you accordingly wanted a smaller council; you might decide to have a council of sixteen and a chairman. You certainly want to keep an equal number; that is eight on each side. Out of the eight on the doctors side supposing you had five doctors, two dentists and one chemist. The chemist in the council of sixteen would be only one-sixteenth of the total body, and by the Fifth Schedule he has got to be one-twelfth. Well, you cannot have one and a quarter chemists. The effect of the noble Lord's Amendment would therefore be that you would always have to deal in multiples of twenty-four. You would be unable to get anything else. It would be either twenty-four or forty-eight and so on. We must keep the balance as between the two sides and if this question does arise we must do our best to arrange it in the way I have indicated. We cannot abide by the numerical proportions.

LORD LUKE

I thank the noble and learned Lord for his lesson in mathematics, and in view of the explanation he has given, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD ADDINGTON moved to add to the clause: () Every executive council and joint committee shall, within such period as the Minister may by direction specify, submit to the Minister a scheme for the exercise of their functions with respect to the provision of services under this Part of this Act. () A copy of every scheme submitted to the Minister under the last foregoing subsection shall be sent to every local health authority within the area of the executive council or joint committee by whom the scheme is submitted and every such local health authority shall be entitled to make representations to the Minister in relation thereto.

The noble Lord said: This refers to the same question of consultation and co-ordination that was raised yesterday in relation to Clause 11. Therefore, I will not repeat what I then said. There is, however, this difference that whereas the Regional Boards had to produce a scheme, I cannot see any provision that executive councils should produce a scheme. Yet I think there is more reason that a scheme should be produced, and that everybody should thereby be made acquainted with what is happening, possibly, in this case, than there was in the case dealt with in relation to Clause 11. I think, as I have indicated before, that the direct method of consultation is preferable to any casual method of information being conveyed by the members who may happen to be on the executive council. I move this Amendment, briefly, in the hope that noble Lords opposite may feel that there is something to be said for the view that executive councils should be required to make a scheme. I beg to move.

Amendment moved— Page 25, line 9, at end insert the said new subsections.—(Lord Addington.)

THE EARL OF LISTOWEL

The effect of the noble Lord's Amendment would be to require executive councils and joint committees, if they are set up, to submit to the Minister schemes for the exercise of their functions, and to oblige them to send copies of the schemes to the local health authorities in the area, which would then be able to forward their comments, if they so desired, to the Minister. I cannot help thinking that, as in the case of the noble Lord's earlier Amendment, this would cause waste of time and effort. The executive councils would have to draw up these schemes, their officers would be engaged for many hours in this work, and the schemes would then have to be considered by officials of the Ministry. Schemes such as the noble Lord has in mind would only be for the opinion of the Minister because he does not say that he wishes them to be subject to the Minister's approval. It is simply a question of the Minister knowing all the time what is going on. It will be seen that under Clause 33 the broad lines of what these executive councils are to do will be prescribed in regulations by the Minister. Their job will be to apply those regulations in their particular area. There is, therefore, no doubt at all that the Minister will know exactly what instructions he has given and will be constantly in touch to see what the councils are doing, how they are acting on these instructions, and what are their proposals in each particular area.

That is one object which I think that the noble Lord had in mind. There was another. That was to obtain more effective co-ordination. Co-ordination between the plans of executive councils and local health authorities is already obtained by a provision in the Fifth Schedule of the Bill. Paragraph 1 of this Schedule says: An executive council shall consist of a chairman appointed by the Minister and twenty-four other members of whom— (a) eight members shall be appointed by the local health authority for the area of the executive council; … This gives the local health authority in each area the right to appoint one third of the twenty-four members of the executive council, and they will thus not only be informed of whatever plans the executive council will making but, through their representatives, will help to shape these plans before they are completed. I think, therefore, that from the point of view of satisfactory co-ordination in the different areas into which the country will be divided, and from the point of view of a proper relationship between the Ministry and the executive councils, provision is already made in the Bill. I hope that the noble Lord will be satisfied by that explanation.

LORD ADDINGTON

In those circumstances, I beg leave, to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33:

Arrangements for general medical services.

(2) Regulations may make provision for defining the personal medical services to be provided and for securing that the arrangements will be such that all persons availing themselves of those services will receive adequate personal care and attendance, and the regulations shall include provision—

(d) for the issue to patients or their personal representatives by medical practitioners providing such services as aforesaid of certificates reasonably required by them under or for the purposes of any enactment.

3.23 p.m.

LORD HENLEY moved, in subsection (2), at the end of paragraph (d), to insert "or for the purposes of complying with any requirement arising out of a contract of employment." The noble Lord said: Clause 33 provides that the executive council shall make arrangements with medical practitioners for personal and medical services for potential patients in their area, and that they may make regulations as to what these personal medical services are to be. Subsection (2) (d) relates to the issue to patients of certificates "reasonably required by them under or for the purposes of any enactment." The object of this Amendment, which is based on the assumption that these medical certificates will be issued to patients free of charge, is to extend the issue of free certificates to patients covered by the provision of conditions of service in his employment entitling him to continue on full wages for the period during which he is incapacitated. Such a man's employer will need a medical certificate, before the payment of full wages during the man's incapacity. Unless this Amendment is carried, the patient may have to pay a substantial sum for a certificate, which may be in a different form from that required under the National Health Insurance Act.

A much wider Amendment than this was moved in another place. That proposed to leave out the last line of subsection (2) (d): "under or for the purposes of any enactment," which means that certificates should be provided by the practitioners when these are required. This met with strong opposition from the Minister of Health, but I think that he more or less sympathetically favoured some sort of Amendment of a more restricted range, and I hope that the Amendment which I have proposed may be acceptable.

Amendment moved— Page 26, line 16, at end insert ("or for the purposes of complying with any requirement arising out of a contract of employment").—(Lord Henley.)

THE LORD CHANCELLOR

We have looked into this, but we do not think that we ought to accept the Amendment. As the noble Lord says, the real point is whether doctors should be called upon to give all these certificates free of charge. Doctors' obligations in national health insurance work are limited to giving certificates required in that connexion; that is to say, where a patient wants a certificate to support a claim for sickness benefit, or the like. Here we have extended that. We have widened the doctors obligations to the provision of certificates "reasonably required.… under or for the purposes of any enactment." "Enactment" would include regulations. For instance, for priority food for an expectant mother, a certificate would be obtainable free of charge.

This Amendment seeks to go even further. It seeks to require the doctor, free of charge, to give a certificate required for a private purpose. That is, a purpose which has nothing to do with any Act, which has nothing to do with any insurance scheme, or with any regulation. It is simply a matter depending on contract between the person and the employer. I do not want to say that in all cases such as that the doctor ought to be asked to give the certificate free of charge. In practice, of course, many workers who have to obtain a certificate of this sort—as the noble Lord knows—take round to their employer the certificate which they have which entitles them to sickness benefit and in ninety-nine cases out of a hundred the employer is satisfied with that. Where you are not dealing with public enactments at all I do not see why the doctor should not be allowed a reasonable and proper charge.

VISCOUNT SIMON

May I ask the noble and learned Lord, the Lord Chancellor, for his view on one point? As he knows well, in connexion with workmen's compensation, it is not uncommon that in order that compensation should continue a doctor's certificate is required. I am under the impression that a County Court judge may ask for a doctor's certificate, but I am not quite clear from the explanation of the noble and learned Lord whether this clause as it stands would cover that.

THE LORD CHANCELLOR

To be frank, I am not sure about that. Of course I was thinking of the Insurance Act which is to replace the workmen's compensation scheme. Under the new dispensation it would be covered. Whether it is now, I do not remember.

LORD ADDINGTON

There are various questions very much akin to insurance—contracts with local authorities, by regulation, for sick pay to employees for a certain length of time. That sick pay does depend on these certificates, and I do not know whether they could be included under this Bill. Under a national arrangement a great many employees of public authorities will require certificates for sick pay.

THE LORD CHANCELLOR

I do not think that we ought to ask doctors to do all these things free of charge. Local authorities arrange to pay the doctors a proper fee.

VISCOUNT BERTIE OF THAME

Is the noble and learned Lord, the Lord Chancellor, going to look into the point made by the noble and learned Viscount, Lord Simon?

THE LORD CHANCELLOR

Certainly.

LORD HENLEY

I am sorry that the Government are unwilling to accept this Amendment. I had hoped that the suggestion of the noble Lord, Lord Addington, might be acceptable, because there are so many of these agreements made by local authorities about the conditions of service, wages, and so on, for large numbers of employees—road workers and others. In view of the fact that there has not been any strong support for this from noble Lords, I beg leave to withdraw.

Amendment, by leave, withdrawn.

3.30 p.m.

LORD LLEWELLIN moved to add the following subsection: Regulations prescribing the terms and conditions upon and subject to which any services would or could be required to be rendered by any medical practitioners under or in pursuance of the provisions of this Act shall be made not less than three months before the day which is the appointed day for the purposes of subsection (1) of Section thirty-four of this Act.

The noble Lord said: This Amendment which I now move in my submission is a very important one. In Clause 34 (1) of the Bill will be found these words: Subject to the provisions of this Part of this Act relating to the disqualification of practitioners, every medical practitioner engaged in medical practice (Otherwise than as a paid assistant) who wishes to provide general medical services shall be entitled, on making an application at any time before the appointed day in the prescribed manner…to be included in the list of medical practitioners.… Therefore, medical practitioners who wish to come into this service have to elect to come in before the appointed day. It is only right and reasonable that these men should be given an adequate opportunity of being told what the conditions are going to be when they come in.

My Amendment seeks to say that regulations prescribing the terms and conditions upon and subject to which any services would or could be required to be rendered by any medical practitioners under or in pursuance of the provisions of this Act shall be made not less than three months before the day which is the appointed day. That is extremely reasonable. There is a strong desire on the part of the medical profession to know these terms a reasonable time in advance so that they will be able to consider them and decide whether or not they should come into this service. There is a considerable body of feeling that it is reasonable that something to that effect should be included in the Bill. I do not wish to take up any more of your Lordships' time, not because this is not important but because I have made the point, and I think I have made it clear that the doctors consider what I have suggested to be reasonable. I very much hope that the Government will be able to meet me on this Amendment.

Amendment moved.— Page 26, line 16, at end insert the said new subsection.—(Lord Llewellin.)

THE LORD CHANCELLOR

As a mere matter of form the words of this Amendment are defective. The noble Lord's phrase: "any medical practitioners under or in pursuance of the provisions of this Act" would extend to Part II—hospital services. We are here dealing with Part IV—medical services. That is a technical point. I will not put it higher. It could be put right. With regard to the substance of the Amendment I feel great sympathy with it. I think it is only right that the medical profession should know the terms and conditions for a longer period even than three months, but I do not want to tie myself down in the Bill, because difficulties may arise. After all, the terms will be negotiated with the representatives of the medical profession, who, I have no doubt, will keep their constituents acquainted with the matter as it proceeds. Although I should certainly hope to be able to give more than three months, and although I say here and now that it is reasonable that it should be more than three months, nevertheless, difficulties may arise, and I would ask your Lordships not to tie us down but to be content with the assurance I give, that I entirely agree it is reasonable; I will do my best to be better than my word, and see if I cannot get the negotiations through—because there will be negotiations with the medical profession—to provide more time than three months.

VISCOUNT CRANBORNE

I appreciate very much the sympathetic attitude of the Lord Chancellor. It is, however, rather difficult to leave the matter exactly where it is. From the point of view of the doctors, this is an extremely important Amendment. The decision they will have to take as to whether they come into the scheme or not will be a very hard one. It must inevitably be so. It will affect the whole of their future lives, and it is only fair that Parliament should allow them adequate time for consideration of this absolutely fundamental decision. I do not know when the appointed day is going to be. I have heard it suggested that it might be 1948. I do not know. If that is so, then that is two years from now. I really think it would be an insult to the medical profession and to the extremely skilful officials of the Ministry of Health to suggest that they could not devise terms and conditions of service within that time. I feel that the doctors might fairly expect that Parliament should include some such provision. I would appeal once more to the Government to accept this very moderate Amendment, which they themselves say is quite right and proper.

THE LORD CHANCELLOR

I would stress that I do not say I accept any definite time. I hope that we shall be able to do it giving very much more time than three months. The appointed day which I have heard suggested is April 1, 1948. There will be very difficult negotiation. However, there will be negotiations with the representatives of the medical profession and they will be able to keep their people in touch with the position. I should like to think we can give at least six months' notice. I think that is what we ought to aim at as a minimum. On the other hand, as I know so well in practice, difficulties do arise and I do not want to find myself in a difficulty at the last moment because some new difficulty has arisen and I cannot make good my undertaking. That being so, I ask your Lordships to leave it in that way. I will gladly look at it and see whether the Minister of Health or the authorities can give me any more specific facts to go on. I will look at it most sympathetically but I ask noble Lords not to press us to put anything binding in the Bill, which might, in the event of what I hope may be unlikely circumstances have an unfortunate result.

LORD LLEWELLIN

What I feel about the matter is that it is necessary to treat the doctors fairly by giving them ample time, and, if the negotiations carry on for too long, the appointed day might well have to be put off another month. If you are going to have your service properly worked it is only reasonable not to have it rushed in this very important particular. Believe me, there is some considerable concern with regard to this particular point. Like the Lord Chancellor, I hope that the doctors will have a period of more than three months, but I suggest that my Amendment ought not to fail because of its moderate character, because I say "not less than three months." I might have said, "not less than six months." I should have liked to have seen them get six months but that might not be possible. This matter is so important. The doctors feel strongly about it. I am quite open to accept any wording which the noble and learned Lord may suggest between now and the Report stage. If I have covered in my Amendment a wider field I, of course, acknowledge that fact.

I do feel that we ought to have some minimum period, even though it might in the end mean putting off the appointed day. I do not, however, believe that it would. I believe it would be putting forward a kind of D Day minus three months to which the officials of the Ministry of Health would have to work, which would not be a bad thing. You would have your definite D Day minus three months, which is very well known in military strategy, and they would have to work to it. I believe we should put this provision in. I should like to put it in by agreement with the Government. I think we are all convinced that it is a reasonable thing to do. If we could have some assurance that between now and Report this would be put in, I realize that the noble and learned Lord may have to consult his colleagues, but it is the kind of thing upon which I think we should really insist, though I do not want to insist to-day.

THE LORD CHANCELLOR

I am very grateful to the noble Lord for the tone and temper in which he has put his position. I can only say that I am completely sympathetic with him. I should like to be able to put something in the Bill. I have not got authority to do it now. For the reason I gave, the particular form of words in the noble Lord's Amendment will not do. I will however give him this assurance. I will look into this matter between now and the Report stage. I will use my best endeavours to get something of the nature of which he wants put in. At any rate, I will see how the matter stands. If I can help, I will.

LORD LLEWELLIN

In view of the reasonable way in which the Lord Chancellor has treated me, if I may say so, I will at the moment agree to withdraw my Amendment. I think my best course would be to put this same Amendment—or I may modify it slightly—down for the Report stage; or if the noble and learned Lord puts another one to achieve the same purpose that can be done.

Amendment, by leave, withdrawn.

3.40 p.m.

LORD LLEWELLIN moved to add the following subsection: The remuneration to medical practitioners undertaking to provide general medical services in pursuance of the provisions of this Act shall be fixed by the capitation method except in any cases where the Minister on the recommendation of the Medical Practices Committee considers that exceptional circumstances necessitate remuneration on a different basis.

The noble Lord said: This raises a point, of course, that goes to the root of whether the doctors shall be paid by salary, as I believe some members of the Party opposite—I do not say in this House but elsewhere—have wanted, or by a capitation fee as hitherto, or by a compromise mixture of salary and capitation fee. Let me say this in passing, that we have had, as yet, no kind of indication, so far as I can see looking through the report of what was said in the other place, of what proportion is going to be by salary or what proportion will be capitation fee. We have as yet had no sort of indication as to what the terms are likely to be. From our point of view we believe that the right way is to pay by capitation fee; but we do realize that there are areas in this country where the capitation does not quite meet the case, and, therefore, the Amendment which I put down says this: The remuneration to medical practitioners undertaking to provide general medical services in pursuance of this Act shall be fixed by the capitation method except in any cases where the Minister on the recommendation of the Medical Practices Committee considers that exceptional circumstances necessitate remuneration on a different basis.

So we do not, of course, cut out the salary entirely, but where the Medical Practices Committee, who are, after all, the ones to recommend to the Minister where there are sufficient or where there are not sufficient doctors in a particular area, recommend to the Minister that it is necessary to attach a salary in order to increase the number of medical officers in such area, the Minister can approve and the salary automatically comes in. But where it can be worked without this new departure of trying to make a State-salaried medical service, then I think we should keep the independence of the doctor as it has been in the past, because, let us remember that once you get a salaried service the doctor becomes much more the servant of the State than the servant of the patient, and it is absolutely essential for good medical service that the patient shall be the person to whom the doctor owes all his loyalty, all his allegiance and who is, therefore, given in his care. With these words I beg to move the Amendment proposed.

Amendment moved— Page 26, line 16, at end, insert the said new subsection.—(Lord Llewellin.)

LORD MORAN

This matter arouses the misgivings of many doctors who, like myself, are satisfied, generally speaking, with the hospital provisions, but have had many misgivings about what will happen to the general practitioner. I am sure your Lordships, in your natural concern about the administrative details, never lose sight of the two or three fundamental things which govern the well-being of the medical profession. There are two questions we always keep on asking when these clauses are taken. The first is, will the medical profession, when this Bill becomes law, be able to attract the exceptional man in competition with the other professions? Now that does not arise under this clause, but the second question does. It is: When this Bill becomes law will the medical profession be able to provide conditions for the general practitioner so that a man entering the ranks of medicine will be as good and as efficient as any in the past, and, when he is there, will remain keen? Now it is on this last question, "Will the conditions keep them keen?" that this Amendment goes really to the root of the whole matter.

I think we may say that the proposal to pay a basic salary requires more justification than we have hitherto heard for it. There can be only two reasons why a basic salary should be paid. One which has been suggested is that the party responsible for this Bill before it came into office had very seriously considered a whole-time medical service with a basic salary and as a concession proposed the method in the Bill. I think if this is true it is not a good reason. There is a better reason. It is said that any practitioner entering medicine may, in his first year or two, have financial difficulties and that a basic salary of three or four hundred pounds per annum may supply some measure of security. But look at that a little more closely for the moment. Will this basic salary really act in that way? Is it proposed that the Ministry of Health should go on paying doctors a basic salary if they do not get any patients in their first year or two? Are they going to give something for nothing? If that is not the intention of the Ministry, if it is not their intention to pay a basic salary no matter how many patients he does or does not get, then it is quite clear that if he gets patients to the equivalent amount of this basic salary then this measure of security is no longer necessary. So it seems almost impossible to make out a logical case for the basic salary, and not only is there very little to be said for a basic salary but there is a good deal to be said for the alternative of a capitation fee.

In past years I was asked to advise the medical service of the Navy and the Royal Army Medical Corps how they could get keen men into the service and how they could keep them keen when they were in the service. The result of one's investigation came to this: it was impossible, with many brilliant exceptions, to keep the men as keen in whole-time salaried service of that nature as in general practice where the competitive stimulant is present all the time. I was convinced by my investigation that if you ever had anything approximating a whole-time service you must pay great attention to incentive. That is why I should like to see the whole of the remuneration paid by capitation fee and the basic salary dropped. I think if that could be done it would be extremely helpful to the medical profession. It is sometimes said that there is something derogatory in competition, that there is something derogatory in competing for patients. Is that really true? I am sure the noble and learned Lord on the Woolsack, who has experience of a sister profession, would not subscribe to that for a moment. Would he, at this very moment, be so often demonstrating the development of his forensic skill to which the noble Lord, Lord Balfour of Burleigh referred, if instead of the incentive of competing for briefs in his earlier years he had been a salaried servant of some corporation? It is unthinkable.

LORD HORDER

I want to support the Amendment of the noble Lord, Lord Llewellin, and I will take rather different grounds for doing so from those which animated the noble Lord who has just spoken. It has been reported during the last two days that the Minister of Health, on his own statement, is on better terms with the British Medical Association than he has formerly been. I think he gets some satisfaction out of this. If it be, in fact, true, I would suggest that he can do nothing more salutary or more certain to take these good relations a stage further than by accepting, through the noble Lords who represent him here, this Amendment. We have been assured several times during the Committee stage of this Bill that there is no intention of the Government to nationalize the medical profession. Those statements may be made ad nauseam, I was going to say; they might be made indefinitely and there would still be rather firmly fixed in the minds of the members of my profession the idea that that is the final intention of the Government and of the Ministry of Health.

There is an equally strong feeling about this method of remunerating the doctor in part by a basic salary and in part by a capitation fee, which you will remember scales down with the number of patients which the doctor treats, so that, as I said the other day, a ceiling is fixed ultimately above which no doctor can rise whether by energy, by genius or by any other quality which we want to encourage in members of our profession. The reasons stated for this part-payment of the doctor by a basic salary have seemed to us to be quite inadequate. If I remember them aright, the first was that it was desirable to have something to which an addition could be made if the particular area in which the doctor was practising had handicaps and disadvantages; so that he might be attracted to practise there the basic salary could be raised. Another reason was that the good man could be encouraged by raising the level of his basic salary. Neither of those two reasons seems to have made any impression on the doctors. They have got it firmly fixed in their minds that this is the most vital spot at which the Government can attack the independence of the doctor, whether it be his independence as a practitioner of medicine or his independence as a man who is earning his living in a very reputable fashion.

We have been told—and we have not forgotten it—by the Lord Privy Seal in another place that this is the first step towards a complete policy. What is that complete policy if it be not to nationalize medicine and to make all doctors whole-time salaried servants of the State? It has been said again in another place that the time was not yet right for a full-time salaried service for every doctor. Ripeness, I take it, applies to some form of fruit, which you do not look at every time you pass it but you intend sooner or later to pluck it when it is ripe. I would suggest to my noble friends who have charge of this Bill in this House that they consider very seriously whether it would not be wise to assure themselves of a very big element of extra confidence in the mind of the medical profession by accepting this Amendment.

It has been said again that without the co-operation of the doctors in this country this scheme must fail. The Minister of Health himself has said that. We want it to succeed. We believe that there are good points in this Bill. I think the noble Lord, Lord Beveridge, said that it was a good Bill—I would not go so far as to say that—and he wanted to make it better. I think it a bad Bill but I would like to make it less bad, and I have committed myself to the belief that the doctors of this country will do their very utmost to work this Bill be it good or bad. Doctors cannot strike; that is not a possible situation. They must continue their work, and they must have State support in continuing their work. It is for the State to help the doctor and not so much for the doctor to help the State. The State is a comparatively recent innovator in the field of medicine whereas medicine is thousands of years old. As we know, the State during the last century made very great advances in the direction of implementing medicine for the health and happiness of the people. We take the same view. As I have said before in your Lordships' House, it is not only the Minister, and it is not only the supporters of the Government who wish to make the people healthy and to see the people well—we all desire that. We think that it can be done better with the hearty, active co-operation of a profession to which bouquets are very frequently passed when they are not very expensive to purchase.

One other word. The doctor is not an altruist when he starts in his profession. The doctor is an altruist in proportion as he succeeds in his profession, and you must not expect from the young practitioner, with his responsibilities, entering upon a career which is notoriously an expensive one both for his parents and for himself, that degree of altruism which you can reasonably expect and do get from those members of the medical profession who arrive and are, therefore, able to add to the counsels of the Ministers of the State. I have passed my bouquet to the Minister of Health in this House, and I need not therefore pass him another. But there is sometimes an element of the dictator about the Minister—on the Second Reading I used the term ipse dixit-ism and I will repeat that—too much ipse dixit-ism towards the profession which has been carrying on not too badly. The medical services of this country have a great deal in their favour. We agree that it is the duty of the State to improve the machine, but the State having improved the machine then it is for the doctor to work the machine. A willing worker will go a long way, but an unwilling worker will go only a very short way and will not even give to your scheme the trial which I think it deserves.

VISCOUNT ADDISON

As the noble Lord who moved this Amendment quite rightly said, it affects a fundamental matter. I agree with him completely on that. It relates to a very vital element in the whole scheme of the Bill and I will return to one or two points which he made in that regard. But first may I just for a moment recall that I well remember thirty-four years ago being involved in this very controversy. At that time I heard speeches rather like that which was made by the noble Lord, Lord Horder, just now. I am sure that a large number of medical men up and down the country really felt their flesh creep when they heard those speeches telling them about the dreadful things that were going to happen. But they did not happen, and I was one of those who said they would not. I remember that afterwards they stood me an excellent dinner, and I think it was because they found they had been wrong. I disagree now with the noble Lord equally as much as I did with some of those critics at that time, and I think his faint praise will not be likely to stimulate that hearty assistance in working the scheme which he otherwise says he desires. However, let us put that on one side for the moment.

I myself was largely in charge of the negotiations relating to the original capitation allowance all those years ago. To be quite frank, I have been exceedingly disappointed at the way in which it has worked. It is not often—in fact, I do not remember it happening before—that I find myself in disagreement with the noble Lord, Lord Moran, but I am completely in disagreement with him on one of the things he said just now. He asked us whether we thought there was anything derogatory in the competition for patients, and said he did not think there was. Well, I do—quite emphatically. I would say that the whole tradition and practice of the medical profession is to frown on any unnecessary competition for patients. It is the one thing it does not like, and I think it is right in that matter. There have been quite a number of cases—and it is no good pretending there have not—where men have enlarged their lists not because of their skill or anything like that, but by doing other things which have attracted people to them. I think myself that the list system of payment has not been by any means beyond criticism, and in some places it has been attended by some very unfortunate results. For my part, I think experience does not justify the praise which has just lately been bestowed upon it. In fact, I think it justifies exactly the opposite view.

There are two or three very good reasons for the system which is proposed in the Bill. In the first place, we do not want—and nobody wants—inflated lists. If a man has a very large, inflated list, it means he cannot give that detailed personal attention to his patients which they ought to have; that is a certainty. We know there have been a large number of instances of inflated lists which have had that very unfortunate consequence. As a mere mathematical calculation, that result is unavoidable. Therefore there are distinct faults attaching to the capitation system and it was on that account that we adopted the system proposed in the Bill, and not because we had any sinister designs like those suggested by the noble Lord who has just spoken and by the noble Lord opposite who spoke earlier in the discussion. I am taking the phrase from him; I do wish noble Lords would give us credit for not being quite such Machiavellian creatures as they would suggest. We are ordinary straightforward people who believe in a certain way of doing things; there is no sinister design behind it—not at all. We have adopted this system because we think this is a better way of paying people—and it is a better way.

Let me give your Lordships one or two reasons for saying so. Firstly, there is the danger a what I call the unrestricted competition, which we think is not desirable notwithstanding the fact that it has been praised in this House by no less a person than the noble Lord opposite, with all the authority he possesses. I do not agree with him at all, for I think it is frequently exceedingly undesirable. However, let us put that on one side. Secondly, it will be necessary and desirable to try to attract young men to country districts where there are relatively few people. The right way in which to do that is to give these young fellows a certain feeling of security, and the way in which to give them a feeling of security is to let them know that they will have something to live on. That is why the basic salary is an important ingredient in the scheme. Further, there is this other ingredient, which was one of the reasons which led us to decide on the double system. You often have areas which are very inadequately served by medical men, and those are the areas in which the attraction of a basic salary will be very influential in helping us to get the service we want.

You cannot prescribe the method of payment in the Act; it must be left to negotiations. I would remind the noble Lord who is responsible for this Amendment that the method of payment was not even prescribed in the original Health Insurance Act; it was left to be done by negotiation. I am quite sure there is not one of us in this House who will envy the Minister of Health in the task that lies before him in the next year or two in the negotiations he will have to conduct on this matter. At all events, the precise procedure will have to be the subject of negotiation, and so will the relation between the basic salary and the capitation fee. I do not think myself that it will be possible to devise a system whereby they can be standardized. In remote districts the basic salary will probably have to be higher than in some other places, and therefore you cannot prescribe a standard. It is because we are convinced that there is a real necessity for some stability for every young practitioner who enters into this service that we have put in the ingredient of a basic salary. There is still, shall we say, an element of competition which, so far as it is wholesome and proper, we ought to recognize and which none of us would wish to damage, and that is recognized in the capitation element, but there is this other provision which will have a very important and reassuring effect on every young man who enters this service. I am quite sure we should be exceedingly ill-advised to take away that element from the scheme of payment. Therefore we cannot possibly accept this Amendment.

VISCOUNT CRANBORNE

We have had an extremely interesting and important debate on what is clearly one of the main Amendments which have been put down to this Bill. Most of your Lordships, I expect, are like myself. We have not any very long technical experience of the medical profession, except on such occasions as those on which we are ourselves patients, but we have had a remarkable consensus of view on the one side from the two leading members of the medical profession in this House—the noble Lord, Lord Moran, and the noble Lord, Lord Horder—who speak, after all, with unrivalled experience on this question. Both of them have said, as I understand it, that a capitation fee or, if you like to put it in another way, payment by results—because that is what it amounts to—is necessary to keep the medical profession up to the mark and to make the new State service efficient. Following on that there have been forcible arguments advanced by the noble Viscount, the Leader of the House, who also speaks with great experience of the medical profession. The gist of his remarks was really that he had heard it all before; everything that was said by Lord Moran and Lord Horder he had heard before. He heard it when he was a young man; he went through it all. That may be a very strong argument, but it is not an entirely convincing argument. I remember a story when I was a child about someone who was always calling, "Wolf, wolf," and nobody believed him. Then one day the wolf did turn up, with deplorable consequences for all concerned.

The noble Viscount, the Leader of the House, rebuked the noble Lord, Lord Moran, as I understood it, for suggesting that there was any value in competition in the medical profession. He said it was something which was always rather "blown on"; he regarded it as rather disreputable. That is a matter of opinion. I would have thought that there was something advantageous in the element of competition. I thought the Leader of the House was perhaps in the circumstances rather wise not to put up the Lord Chancellor to speak on this Amendment. He belongs to a profession which has perhaps rather more plums to pick than any other profession, and he has picked most of them himself. He would have been in a slightly embarrassing position in dealing with this argument. The Leader of the House was better situated, and I thought he made a very good showing.

But it is the merit of this House that it does contain so many of the greatest authorities on practically all questions and we have the chance of getting the best advice we can on all sides. I think it can be fairly said that without political bias we listen to that advice and try to come to our conclusions as the result of a debate. I have known many cases where the powerful advocacy of the noble Viscount, the Leader of the House, and the Lord Chancellor have turned debates, and a noble Lord who came into this House intending to take a strong line went away having been persuaded. We can all remember cases of that kind. I am bound to say that personally I do not think—and I only speak for myself in this—that this is one of those occasions. I myself came to the conclusion, taking account of the experience of the noble Lord, Lord Horder, and the noble Lord, Lord Moran, with their knowledge of their profession and their knowledge of the individual members of their profession, that the case they made out was unanswerable.

I can assure the Government that in this question there is no element of political bias. We are trying to come to our decision on the necessity of technical efficiency for the new scheme. On that—and I believe I speak for other noble Lords on this side of the House—I am afraid we feel the balance of the argument is in favour of the noble Lord, Lord Moran, and for that reason we shall be obliged to take this matter to a Division.

TUE MARQUESS OF READING

After what the noble Viscount has said about anybody who shares, however humbly, the Lord Chancellor's profession, I hesitate to enter the controversy even as one who, after he has consumed all the ripe plums, has had to content himself with the less ripe damsons of this world. Still more perhaps would I hesitate to differ from the view expressed with so much authority by the noble Lord, Lord Moran, and the noble Lord, Lord Horder. At the same time, we do not feel that in this matter we can take a different line from that which the Government have taken, and we are of opinion that this double arrangement, the combination of the salary and the capitation grant, is the just and fair way of dealing with this situation.

We feel that I think mainly for two reasons: firstly, that the capitation grant by itself was inadvisable as leading, not to the elimination of competition, but to the danger of an excessive and undesirable scramble for patients, which I think in the interests of the patients we all want to avoid. The second reason which I confess influences me strongly is one which was touched upon by the noble Lord, Lord Moran, and also by the Leader of the House, that is to say, the advantage it is to a young man starting in the profession to have what is a fundamental desire of the whole population at this moment, some element of security behind him when he is starting out in life. In my time, as have most of us in our profession, I have seen too many young men obliged to abandon their career in the early stages because they had no means at their disposal of going on with it. I know of others who would have desired to have entered the medical profession but who have been similarly debarred. Perhaps they have been able, with the assistance of Government grants, to obtain the necessary resources to undertake the necessary qualification, but with nothing left to enable them to embark upon the profession once they had begun it.

For those reasons we should not feel disposed to oppose the Government, but I would ask them whether they would say one thing which I think would reassure us and other noble Lords who have spoken on the other Opposition Benches. The noble Lord, Lord Horder, stressed what I feel is in the thoughts of many doctors, that this was the first step towards the introduction of a State medical service. A good deal has been said in another place which would lend colour to that apprehension. If the Government were able to say that it was not in the minds of this Government, in the present condition of affairs, to take this measure beyond the limits set out in this Bill, and to embark upon a wider scheme of State medical service and State control of

Resolved in the affirmative, and Amendment agreed to accordingly.

4.26 p.m.

VISCOUNT MAUGHAM moved to insert the following subsection: Nothing in this Act shall be deemed to debar, and no regulations shall be made so as to debar any medical practitioner from giving or issuing arty certificate (whether under this Act or any other. Act or otherwise) in relation to or for any purpose of any of the services provided under this Act on the ground that such medical practitioner is not included in any list or in any particular list of medical practitioners undertaking to provide general medical

doctors, I suggest that it would go a considerable way to allay the very genuine fears which I am sure many noble Lords feel.

VISCOUNT ADDISON

I can give that assurance, and do.

On Question, Whether the said subsection shall be there inserted?

Their Lordships divided: Contents, 53; Not-Contents, 37.

CONTENTS.
Aberdeen and Temair, M. Simon, V. Greville, L.
Salisbury, M. Templewood, V. Hampton, L.
Hatherton, L.
Craven, E. Derby, L. Bp. Hawke, L.
De La Warr, E. Hindlip, L.
Dudley, E. Addington, L. Horder, L.
Fortescue, E. [Teller.] Amherst of Hackney, L. Howard of Glossop, L.
Iddesleigh, E. Balfour of Inchrye, L. Kenilworth, L.
Lucan, E. Belstead, L Llewellin, L.
Munster, E. Cecil, L. (V. Cranborne.) Luke, L.
Vane, E. (M. Londonderry.) Cherwell, L. Moran, L.
Ypres, E. Clanwilliam, L. (E. Clanwilliam.) O'Hagan, L.
Rushcliffe, L.
Brentford, V. Courthope, L. Sandhurst, L.
Bridgeman, V. Croft, L. Soulbury, L.
Elibank, V. Cunliffe, L. Templemore, L.
Hailsham, V. Denham, L. [Teller.] Teynham, L.
Long, V. Doverdale, L. Tweedsmuir, L.
Margesson, V. Fairfax of Cameron, L. Wolverton, L.
Maugham, V.
NOT-CONTENTS.
Jowitt, L. (L. Chancellor.) Wimborne, V. Lucas of Chilworth, L.
Morrison, L.
Reading, M. Ammon, L. Mountevans, L.
Amulree, L. Nathan, L.
Drogheda, E. Boyle, L. (E. Cork and Orrery.) Northington, L. (L. Henley,)
Huntingdon, E. Pakenham, L.
Perth, E. Charnwood, L. Quibell, L.
Chorley, L. [Teller.] Rochdale, L.
Addison, V. Clwyd, L. Rothschild, L.
Cecil of Chelwood, V. Cozens-Hardy, L. Rusholme, L.
Hutchinson, V. (E. Donoughmore.) Denman, L. Shepherd, L.
Hare. L. (E. Listowel.) Stanmore, L.
Mersey, V. Henderson, L. Walkden, L. [Teller.]
St. Davids, V. Holden, L. Westwood, L.
Samuel, V.

services in pursuance of the provisions of this Act."

The noble Viscount said: The Amendment standing in my name is inserted in order to relieve the minds of a number of medical practitioners who are riot, at present, intending to go on the list, because of an apprehension which they feel that the regulations made under the clause with which I am dealing might preclude an independent doctor, if I may use that phrase, from giving certificates which are necessary under Acts of Parliament. I am not, I hope, one who is apt to attribute either Machiavellian or sinister motives to anybody, and I do not start with the notion that that is intended by this clause, but the fact of the place in which this has come has given rise to the apprehension which I have mentioned. I am very anxious that it should be dispelled in some way or other.

It is perfectly plain I think, that the right person to give a certificate for the purpose of any Act of Parliament as to the condition of health, at any particular time, of a workman or any other person who is subject to such a liability as to require a certificate, should be the medical attendant who has attended him, knows his history—at any rate for some time—and, when it comes to the stage when a certificate is necessary, can give that certificate. I cannot believe that it is the intention of the Government, by the words which have been used, to preclude the independent practitioners from giving certificates in cases where their patients are concerned. It is with that in view, and to make the matter quite plain, that I have put down this Amendment. I would only add that, having regard to speeches to which we have listened on this occasion and on other occasions, it is clear that it is desirable to the utmost extent to remove views of the kind which I have mentioned from the minds of people who are going to have to make a decision, before the appointed day, as to whether they go on the list or not. I need not dwell on that point. I hope that the Lord Chancellor, or any other member of the Government who replies, will be in a position to satisfy me that the risks in question do not exist. I beg to move.

Amendment moved — Page 26, line 16, at end insert the said new subsection.—(Viscount Maugham.)

THE LORD CHANCELLOR

The noble Viscount has made very clear the object of his Amendment and I think I can satisfy him in regard to the point which he has raised. Under this Bill there is no distinction between—if I may use his convenient phrase—the independent doctor and the doctor who is operating under the public services—no distinction whatever. There is, of course, this, which I must say. The noble Viscount knows quite well that the provision of drugs free of charge for persons receiving general medical services—which is dealt with in Part IV—is inherent in the scheme, and that does not apply to the doctor. So far as he is concerned, under this Bill the two are in exactly the same position. Having given the noble Viscount that assurance, and I need hardly say that I would not have given it until we had carefully checked it, I hope that he will be in a position to withdraw.

VISCOUNT MAUGHAM

Subject to what any of your Lordships may say, that is an assurance which we may well accept, and accordingly I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 33, as amended, agreed to.

Clause 34 [Distribution of medical practitioners providing services]:

THE EARL OF LISTOWEL

The object of this Amendment, in subsection (7), to substitute "determination" for "hearing," is to ensure that the appeal of the doctor against the decision of the Medical Practices Committee must be decided, as well as heard, before the successful applicant is allowed to take up a new practice. I beg to move.

Amendment moved— Page 27, line 34, leave out ("hearing") and insert ("determination").—(The Earl of Listowel.)

On Question, Amendment agreed to.

4.32 p.m.

THE EARL OF MUNSTER moved to add the following subsections: (9) The Medical Practices Committee and any executive council, in exercising any power under this section or under regulations made thereunder, and the Minister, in determining any appeal under this section shall have regard to any desire expressed by members of a family to work together and to any desire expressed by a medical practitioner to succeed to the practice of his father or other near relative. (10) The Medical Practices Committee and any executive council in considering candidates with a view to filling a vacancy among medical practitioners practising together as a partnership and included in any list of medical practitioners kept under this Part of this Act shall consult with the remaining members of the group before selecting the candidate to fill the vacancy.

The noble Earl said: This Amendment really falls into two parts, and perhaps I may deal with them separately. In the first place, I should like to ask the Government to tell us very briefly their views upon the future of partnerships in the medical world. Are these partnerships to continue, or is it the intention of the Government that partnerships shall gradually disappear? It is important to ask that question, for this reason. If partnerships are to continue, there is obviously something in my Amendment; but if it is the Government's intention that they should not continue then there is nothing in the Amendment at all.

With regard to the proposed subsection (9), its purpose is to ensure that where a father and son are both medical practitioners the son shall succeed to the father's practice if he expresses a desire so to do. For many years in the profession there have been any number of instances where a son has succeeded to his father's practice. With regard to the proposed new subsection (10), as, I said on the Second Reading of the Bill, I believe that it is desirable, and also reasonable, that the members of a partnership should have some voice in the selection of the new partner to fill a vacancy. For exactly the same reason, it seems highly undesirable that somebody who may be quite unacceptable to the existing partnership should be appointed to join the main partner. Those are the two new subsections which I should like to see included—the first dealing with a son succeeding his father, and the second with an existing partnership having some consultation with the Medical Practices Committee and the medical executive council in considering candidates for a vacancy. I beg to move.

Amendment moved— Page 28, line 13, at end insert the proposed new subsections.—(The Earl of Munster.)

VISCOUNT MAUGHAM

I beg to support this Amendment, in a very few words. What I am afraid of is that unless it is clear that the said son has, with the assistance of the Minister, a very fair chance of succeeding in due course to his father's practice, practitioners in medicine with children who they hope will also become doctors, will be very much disposed not to come on to the list. It is obviously the desire of the Government that such people should not be in any way handicapped in relation to their family duties, and in getting their sons to follow in the practice which they may have carried on for perhaps fifty years. I suggest that it is greatly in the interests of the Government to accept this Amendment.

THE EARL OF LISTOWEL

Let me first answer the question addressed to me by the noble Earl, whether the Government wish medical partnerships to continue Of course, the Government wish them to continue, so long as the doctors themselves want to work in partnership. We contemplate that partnerships will persist, either in the independent medical service or in the public service, according to the choice of the doctors concerned. The effect of the noble Earl's Amendment would be to oblige those concerned with filling a vacant practice to bear in mind, when choosing an applicant, such considerations as family ties and the wishes of the medical partnership. I think that it is quite clear that the existence of family or group relationships between an applicant and the area where he wishes to practise would be a material factor which the executive council could not fail to take into account in advising the Medical Practices Committee about the application itself, and also by the Minister in the event of an appeal. It seems obvious, also, other things being equal—I imagine that the competence of the doctor himself would be one important consideration—that preference would be given to an applicant having ties of this kind. Therefore, I cannot help feeling doubtful whether any express reference to this matter in the Bill is needed. If the noble Earl wishes it, and the noble and learned Viscount supporting him shares this desire, I will gladly consult my right honourable friend the Minister of Health about this Amendment, and see if it is possible to devise a form of words which would put the consideration in terms in the Bill.

THE EARL OF MUNSTER

I am very, much obliged to the noble Earl and the Government. I assume that in his reply the noble Earl was not only talking of a son succeeding his father, but also was referring to my proposed new subsection (10). In those circumstances, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 34, as amended, agreed to.

Clause 35:

Prohibition of sale of medical practices.

(2) Any person who sells or buys the goodwill or any part of the goodwill of a medical practice which it is unlawful to sell by virtue of the last foregoing subsection, shall be guilty of an offence and shall be liable on indictment to a fine not exceeding—

  1. (a) such amount as will in the opinion of the court secure that he derives no benefit from the offence; and
  2. (b) the further amount of five hundred pounds;
or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

(3)Where any medical practitioner or the personal representative of any medical practitioner knowingly sells or lets premises previously used by that practitioner for the purposes of his practice to another medical practitioner, or in any other way disposes or procures the disposition of the premises, whether by a single transaction or a series of transactions, with a view to enabling another practitioner to use the premises for the purposes of his practice, and the consideration for the sale, letting or other disposition is substantially in excess of the consideration which might reasonably have been expected if the premises had not previously been used for the purposes of medical practice, the sale, letting or other disposition of the premises shall be deemed for the purposes of this section to be a sale by the first medical practitioner or his personal representative of the goodwill or part of the goodwill of the practice of that practitioner to that other practitioner.

Where a medical practitioner or his personal representative sells, lets, or disposes or procures the disposition of, any premises together with any other property, the court's shall, for the purposes of this subsection, make such apportionment of the consideration as it thinks just.

(4) Where in pursuance of any partnership agreement between medical practitioners—

  1. (a) any valuable consideration, other than the performance of services in the partnership business, is given by a partner or proposed partner as consideration for his being taken into partnership;
  2. (b) any valuable consideration is given to a partner, on or in contemplation of his retirement or of his acceptance of a reduced share of the partnership profits, or to the personal representative of a partner on his death, not being consideration in respect of past services of that partner or of property of that partner which is transferred or made available to the other partners or any of them for fair consideration; or
  3. (c) services are performed by any partner for a consideration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the agreement was made;
there shall be deemed for the purposes of this section to have been a sale of the goodwill or part of the goodwill…

(5) Where any medical practitioner performs services as an assistant to another medical practitioner for a remuneration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the remuneration was fixed, and subsequently succeeds, whether as the result of the partnership agreement or otherwise, to the practice or any part of the practice of the second practitioner, there shall be deemed for the purposes of this section to have been a sale of goodwill or part of the goodwill of the said practice by the second practitioner to the first practitioner, unless it is shown that the said remuneration of the first practitioner was not fixed in contemplation of his succeeding to the said practice or any part thereof, and the said sale shall be deemed for the purposes of this section to have been effected at the time when the remuneration was fixed.

(6) For the purposes of this section— (a) if a medical practitioner or the personal representative of a medical practitioner agrees, for valuable consideration, to do or refrain from doing any act, or allow any act to be done, for the purpose of facilitating the succession of another medical practitioner to the practice or any part of the practice of the first practitioner, the transaction shall be deemed to be a sale of the goodwill or part of the goodwill of that practice by the first practitioner or his personal representative to the second practitioner;

Provided that this subsection shall not apply to anything done in relation to the acquisition of premises for the purposes of a medical practice, or in pursuance of a partnership agreement, or to the performance of services as an assistant to a medical praotitioner.

4.39 p.m.

VISCOUNT MAUGHAM moved in subsection (2) after "who," to insert "knowingly." The noble Viscount said: I venture to think that this Amendment is necessary to carry out the intention of the clause as it now stands. If we were only concerned with subsection (1) of Clause 35 it would not be necessary to put in the word "knowingly." What does lead to the difficulty is that there are a number of subsections in the clause, in particular subsections (3), (4), (5) and (6), in which transactions are deemed to be a sale of the goodwill for the purposes of subsection (1) of the clause. The consequence of that is that there may be people who have committed what is made a crime by subsection (1), quite without knowledge of the circumstances in which that crime has resulted. For example, there may be a sale: there may be an agreement under subsection (6)—there are half a dozen instances of this kind—under which a medical practitioner who is retiring sells his furniture, or his medical equipment, instruments of all kinds, some of which are now very expensive, to a new practitioner who is coming in. Who is to know then that that is a breach of Clause 35 (1)? Because it is impossible for him to know whether he will be able to establish, or whether the purchaser will be able to establish, that no part of the consideration was given in respect of goodwill or part thereof.

Again, under subsection (3), where a medical practitioner knowingly sells or lets premises previously used by that practitioner for the purposes of his practice to another medical practitioner, it may be at some subsequent date that a tribunal will say that the consideration for the sale, letting or other disposition is substantially in excess of the consideration which might reasonably have been expected if the premises had not been previously used for the purposes of a medical practice. That is a question to be determined by a tribunal who are not experts at all in valuing premises and they may take a completely different view of the matter from that taken by the two practitioners engaged in the transaction. The man who is coming in may say, "Well, I must get advice." He may get advice from a house agent that the premises are worth £2,500. He gives it and then some busybody comes in and says that £2,500 was too much. You go before the tribunal, and the tribunal, who are not experts at all, may come to the conclusion that £2,500 was substantially in excess of the right consideration. Then both parties are held to have committed a crime and to be liable on indictment to a fine not exceeding the amount derived from the benefit of the offence and the further sum of £500, or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

I do not hide my opinion that the provisions of Clause 35, except so far as they relate to the sale of goodwill by medical practitioners who were on the list on the appointed day, are ill considered and go much too far. But I have endeavoured in the Amendment which I am proposing to this clause to except the bulk of them and to prevent the two first subsections from causing a man to have committed a crime utterly without his being aware of the fact. That is a breach of the universal principle of our law—I went too far; the almost universal principle of our law—that there should be a mens rea before you are liable to be treated as a criminal and sent to gaol. Under the subsections of Clause 35 it is perfectly possible that there may be a sale and a purchase of the goodwill absolutely without the knowledge of either of the parties to it and thus a breach of some subsection under which a sale is deemed to have taken place.

I venture to think I have got a very, very strong ground for asking the Government to insert the word "knowingly," I would add that it appears in subsection (3), where it says: Where any medical practitioner or the personal representative of any medical practitioner knowingly sells or lets premises previously used … The world "knowingly" is rightly inserted there, but in other subsections the word "knowingly" does not appear and I venture to think it should appear in the principal subsection which constitutes the crime and states the penalty which is of a very serious character. In those circumstances I beg to move.

Amendment moved— Page 28, line 26, after ("who") insert ("knowingly").—(Viscount Maugham.)

THE LORD CHANCELLOR

I might adopt the method of the noble Viscount who has moved this Amendment in discussing it rather widely. He gave an illustration. I quite understand his point. He wants "knowingly" in subsection (2) of Clause 35 not so much for its effect on that subsection as its effect on the succeeding subsections, and he has talked about the succeeding subsection. I noticed with interest that no one is here attacking the general principle of the prohibition of the sale of medical practices. Indeed, directly you decide that you are going to control the flow of doctors to any particular area, I think it almost follows as a corollary that you prevent a man in that area from selling freely to anybody who may come along. You destroy his market and you must give compensation. The first thing I should like to point out to your Lordships is this, that we are only dealing here with cases in which full compensation is going to be payable under Clause 36 and although some of us have differences of opinion as to whether this compensation is desirable or not, we should all agree about this, that if a man is getting full compensation from public funds under Clause 36 it is undesirable that he should also get compensation or the sale of his practice sources.

VISCOUNT MAUGHAM

Would the noble Lord allow me to ask him a question?

THE LORD CHANCELLOR

Certainly.

VISCOUNT MAUGHAM

Because he has apparently read the second line of Clause 35—that is to say line 15—in a different way to what I do. The clause begins: Where the name of any medical practitioner is, on the appointed day or at any time thereafter, … Therefore the whole of this subsection would apply not only to the people who were on the list at the appointed day but people who were on the list at any future day and they will not have received any part of the £66,000,000. If my noble friend is content to make the clause apply only to those who are on the list on the appointed day, then I am silenced, because I am really dealing not with them at all. I agree with him they ought not to get anything twice. It was the other people I was thinking of.

THE LORD CHANCELLOR

The point I was making was this—and here I think I have got the noble Lord's assent—we have to see that a man who is compensated from public funds in respect of the prohibition of the sale of his practice does not in addition to that get anything by private means.

VISCOUNT MAUGHAM

Quite.

THE LORD CHANCELLOR

He may do it directly or he may do it indirectly. Let us see how this matter is taken. So far as subsection (2) is concerned the word "knowingly" is quite unnecessary for that subsection by itself, as the noble Viscount agreed, because it is obvious you would never sell or buy the goodwill of a medical practice unless you knew what you were doing. It is not the sort of thing you do in your sleep or when suffering from some mental aberration, or, at least, not often. But I should dislike the word "knowingly" there because I think it would cast doubt on the perfectly sound principle of law that ignorance of law does not excuse. The words are "it is unlawful to sell" We cannot let a fellow get off by saying: "I am very sorry about it. I knew, of course, I was buying a medical practice but I had not read Section 35 of the National Health Service Act and I did not know it was illegal." Therefore, in subsection (2) I think the word knowingly is unnecessary.

When I get to subsection (3), I am dealing with something quite different. There I am dealing not with a direct and obvious, on the face of it, sale of goodwill but premises. There we have thought it right to put in the word "knowingly", and when I deal with some of the later clauses your Lordships will see that there again we have put in words which have the effect of enabling the defendant to answer the charge by saying that remuneration was not fixed by reference, for instance, to the taking of a new partner. This is a very difficult topic because you can so easily say: "I am not selling the goodwill, I am not selling the premises, bless you, all I am doing is to sell a picture. Here is a picture, and the fellow who is coming along is buying my picture for £5,000." In that sort of way you might so very easily avoid the thing. I agree that my observation about compensation applies, of course, to existing people. You might enable a man in that way to get it twice over. You can do it this way. You remember how Jacob had to serve seven years for Rachel, and then it was pointed out he had to serve another seven years—fourteen in all. He rather cheated about it and only did seven. You can get a young partner coming into the service and he might give his services for the first five years for £10 a year. That is exactly the equivalent, his service being worth £1,000 a year, of paying £5,000.

You have got to stop every form of evasion you can, and, therefore, what we have suggested here—I quite agree they are stringent provisions, but they have got to be stringent—are two safeguards. In the first place, we say that anybody in doubt about this, and who does not want to run his neck into a noose, can go before the Medical Practices Committee and if he reveals all the facts and they say, "That is all right," then that certificate is complete protection. Of course, if he keeps information back it is not protection. But he can go to the Medical Practices Committee, and say "This is what I am going to do, is it all right?" They say "Yes" or "No" In the second place we say that prosecutions can only be brought by the Director of Public Prosecutions, and the Director may get the report from the Medical Practices Committee. The net result of it all is this. I agree that these clauses are stringent. They have got to be stringent, they have got to prevent a man getting paid twice over for the same thing. On the other hand, I believe there is adequate protection to prevent an innocent person from getting into trouble about this thing.

We have gone into this very carefully—some of us in the old days with regard to Income Tax law have got rather skilled in thinking of the ways people might try to evade it—and we have thought of the various ways people may try to avoid this by all sorts of methods that are here set out, and we have dealt with them so far as we can, each one of them. Having regard to the protection we have given, I hope your Lordships think that we are right to be careful to get the guilty man because in this case a roan is doing a dishonest thing, he is getting paid twice. On the other hand, I think we have so worded our clauses as to prevent any risk of any innocent man being affected. The acceptance of this word "knowingly" here would have repercussions on the later provisions of the clause.

LORD WOLVERTON

On the Medical Practices Committee would there be any legal person to give advice?

THE LORD CHANCELLOR

Subject to recollection—I will look it up in a moment—five out of the seven are doctors, but it does not specify that any of them are lawyers. The Chairman, a medical practitioner, and eight other members of whom six shall be medical practitioners, and of the six five shall be persons actively engaged in medical practice. It does not say they have to be lawyers.

VISCOUNT MAUGHAM

I hope your Lordship will agree with me when I say that. I am exceedingly anxious to be converted by the noble Lord, the Lord Chancellor, in this case. But really I am unable to accept his explanation. He has actually to consider this clause, but I do not believe from what he says that he quite appreciates what the effect will be. I say that with the very greatest respect, but take subsection (3) as a test of it. There if a man has sold his premises which he has obviously occupied as a doctor to another person who is going to occupy the same premises, which is a perfectly common thing, he has got to do that knowingly. I quite agree if you sell your premises to a doctor whom you know to be a doctor you are knowingly doing that, which is the first condition of the law.

But then the subsection goes on to something quite different. It goes on to speak of a transaction where the consideration for the sale, letting or other disposition is substantially in excess of the consideration which might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice". Who is to determine that? I have known plenty of country doctors, and I know the premises which they occupy. Very often they are in the village street and very often the nicest house, with a row of trees there and a brassplate on the door. But who is to determine whether the consideration for that is too great and, a fortiori, whether the sale is taking place by the executor of the deceased medical practitioner. That is not a question of "knowingly." "Knowingly" does not govern that phrase at all. That is a question of what some tribunal, consisting predominantly of medical men, think is an unfair price for certain premises. I confess I think it is quite wrong that people in an honourable profession such as that of a country doctor or, for that matter, a doctor in a town, should be held subject to a crime punishable by imprisonment on the view of half a dozen laymen as to what certain premises are reasonably worth.

THE LORD CHANCELLOR

If the noble Viscount will forgive me, he is in error. It would not be in the opinion of the Medical Practices Committee at all. For a man to be convicted under subsection (3) you have to prove your case: You have to prove two factors for the satisfaction of the jury or tribunal hearing the case. One factor obviously is that he sold his premises for a consideration not merely enhanced but substantially in excess of what he could have got for those premises had they not been previously used for a doctor's service. It is not true that that matter has to be adjudged by the Medical Practices Committee. They only come in if you like to submit the case to them, and they can shield you.

VISCOUNT MAUGHAM

What the noble and learned Lord says does not affect anything that I say. I have said that it is a matter of opinion as to what premises are worth. That has got to be decided by somebody, of course, and I would respectfully agree that somebody has got to prove that it is substantially in excess. However, I have in the course of my life had experience of a number of differences about valuation of premises, and I know perfectly well that you will have people on each side taking absolutely different views as to what premises are worth. The normal case is that one side puts, say, a value of x on the premises and the other side says it is 2x. That is a perfectly common thing, depending on whether the estate agents, or whoever they are, are on one side or the other. Accordingly you may have people who do say it is too much. Then you have a right to appeal in order that you should not go to prison, and you apply to the Medical Practices Committee under subsection (9). They are then to determine the question whether the price has been substantially in excess of the proper consideration or not.

I submit that persons ought not to be liable to be punished because of a difference of opinion as to what premises are worth unless they know that they are contracting on the terms of an unfair consideration being payable. That would be the effect of putting in the word "knowingly," or some similar word, because I am not wedded in the least to the particular word. I am thinking of the fact that the wording of the clause as it stands, in this subsection and in other subsections, results in a man being deemed to have sold the goodwill when no such thing ever entered his mind. I beg the noble and learned Lord, the Lord Chancellor, to go through them, quite apart from what I have said, and see before the next stage of this Bill is reached whether it may not be that perfectly honest people as a result of these subsections may be imprisoned. I would suggest that really it is intolerable that members of a profession like this, who have got to make their minds whether they will go into the list or not, should be subject to the provisions of Clause 35 unless it is quite clear that they have deliberately evaded or been able somehow to disregard the conditions that they are not to sell a medical practice if they happen to be on the list at any time. I can say no more, but I do strongly feel as a lawyer that these provisions are most unfair and unjust as they stand and should in some way be altered from the point of view of the practitioners who will become liable under them.

On Question, Amendment negatived.

THE LORD CHANCELLOR moved, in subsection (2), after "liable," to insert "on conviction" The noble and learned Lord said: This Amendment is rendered necessary as the result of a clerical error. We have got to put in the word "conviction" because we do not want anybody to be fined unless he is first convicted.

Amendment moved— Page 28, line 29, after ("liable") insert ("on conviction").—(The Lord Chancellor.)

LORD LLEWELLIN

That is obviously right.

On Question, Amendment agreed to.

5.6 p.m.

VISCOUNT MAUGHAM moved, in subsection (3), to leave out "or the personal representative of any medical practitioner." The noble Viscount said: This Amendment raises a somewhat different point from the last, and I do again enlist the attention of the Committee. The word "goodwill" has different signification according to the business or profession to which it is attached. A great element in ordinary goodwill is the name. For instance, if your name is Day & Martin you have a great goodwill connected with that name. That is one of the celebrated cases decided in the Lords. In the case of a doctor goodwill has nothing to do with the name at all, because if your name is Dr. Brown and you sell your practice to a man called Green he has to carry on his business under the name of Green and he gets no advantage from the name. He gets very little advantage from the premises per se. He may in some cases get a little advantage, but only subject to the same risk that a practitioner runs if he does not comply with the provisions of subsection (3). He can carry out a sale of the premises. What then does "goodwill" mean? I will tell your Lordships quite candidly what it does mean. It means nothing more than this, that the man who is selling the goodwill is required to give some assistance, which may be great or small, to the man who is purchasing the goodwill.

The ordinary way in which it is done is that the practitioner who is selling his business goes round with the new practitioner and introduces him to the patients. That is the goodwill which substantially the man is selling in the case of a doctor. Of course, if he is a celebrated surgeon there is no goodwill at all. The very eminent medical practitioners whom we have the advantage of seeing here have absolutely no goodwill they can sell, because their business is connected with their own skill or genius and that you cannot sell. But the ordinary country doctor who agrees to help with an introduction may be to that extent giving some sort of benefit to the goodwill for which he might receive some compensation in money or otherwise. The words which I want to leave out are merely the words which relate to the personal representative of a medical practitioner. My proposition is that when a doctor has died he cannot any longer introduce patients to a newcomer. The legal personal representative is in the same position.

The words that we have here in the Bill as it stands, and the words which I seek to omit—which do not affect the rest of the clause at all, or a real sale of goodwill—are words which affect the widow, sometimes the son and sometimes, it may be, somebody who is only entitled to the consideration which can be obtained by sale of the premises—such as, for instance, a creditor who has got to be paid certain debts. Those people cannot sell goodwill. They cannot give any advantage whatever to the purchaser by any sort of introduction to the patients who were attended by the deceased doctor, and accordingly it is really by inadvertance that the words "or the personal representative of any medical practitioner" are in and that representative is treated as somebody who is deemed to have sold the goodwill.

Of course, an Act of Parliament can do almost anything; it can say that a widow who sells the premises in which she has lived with her husband for, it may be, twenty years, is liable to be treated as though she had committed a crime if somebody thinks she has got substantially too much for them. It may do, that, but let it not be supposed that it is doing it because the widow, in the case I am considering, really and truly is selling or intending to sell the goodwill of her husband's practice. That has gone with the man on his death. Accordingly, the words which I seek to have omitted from this clause are, as I submit, words which are not properly there and which may occasion great injustice. I beg to move.

Amendment moved— Page 28, line 37, leave out from ("practitioner") to ("knowingly") in line 38.—(Viscount Maugham.)

THE LORD CHANCELLOR

We all agree, I think—I will take the case of the widow—that where a widow receives compensation out of public funds in respect of a practice, she should not also get compensation for the same practice out of private funds. The noble Viscount said—and in this respect at any rate I agree with him—that the doctor having died, he cannot go round with his successor to introduce him to his patients. If he asks us to infer that because of that there is no such thing as a sale of goodwill, I must respectfully suggest that he is completely wrong. First of all, the premises themselves may constitute a certain element of goodwill. The fact that a place has been used as a doctor's surgery and consulting room for a very long time, that patients have been accustomed to come there and that it is fitted up as such is an element which might—I do not put it higher than that—enable you to get a higher price for those premises if you sold them to a doctor than if you sold them to anybody else.

But there is another fact which the noble Viscount has overlooked. One of the most important features in the case of a sale of goodwill is the transfer of the case books—at least I should have thought so. I speak in the presence of two noble Lords who know this subject far better than we can ever do, but I should have thought that the fact that not only are the premises occupied but also that the case books are transferred might quite obviously constitute a very valuable element of goodwill. In those circumstances, as this widow is, mark you, knowingly selling to a doctor, and as it has got to be proved against her, to convict her, that she is selling at a price substantially in advance of the price she would have received had she been selling to a person who was not a doctor, I cannot see why we should not prevent her doing that. I cannot see why even a widow, for whom I have the greatest sympathy, should be allowed to be paid twice for the same thing. In the circumstances I maintain that the words "or the personal representative of any medical practitioner" ought to be there.

VISCOUNT MAUGHAM

I agree to this extent with the noble and learned Lord: that if a widow has obtained part of the £66,000,000 she ought not to get it again. But I am not confining myself to that; in fact I am not dealing with it at all, so far as I know. This, I suppose, has to be a sale which takes place after the appointed day, because before the appointed day these provisions do not apply. The case I am dealing with is that of the personal representative of any medical practitioner who has died after the appointed day. He may have received something in respect of goodwill, which it was expected would last for some time, because he could undertake on a sale of goodwill to help with the introduction of clients; but at present I venture to think the Lord Chancellor has there been guilty of an error in his view as to what subsection (3) really is dealing with. There cannot be a double application of the consideration which can be given out of this sum of £66,000,000. Either the medical practitioner had it or he did not have it, and his widow is outside that altogether.

Something ingenious was suggested with regard to a case book. A country doctor may, and always should, keep a case book, but I have never myself heard anybody suggest that the handing over of a case book was a sale of goodwill. What can a doctor do with a case book? He cannot get by that an introduction to patients. Although I have not looked into this matter for a good many years, I am inclined to think that a doctor would not be entitled to hand over to another doctor who was setting up a new practice in the same neighbourhood, even in the premises previously occupied, a case book with the secrets of all his patients in it. In the sort of instance of which I am thinking, I consider the duty of the doctor would be to destroy the case book. I may say that I have some support on that from my noble friend Lord Horder who is sitting beside me. So the point about the case book goes, and how much is left is for your Lordships to determine.

Of course subsection (3) is not the only subsection; all these provisions have to be considered in relation to cases where a medical practitioner is deemed to have sold the goodwill of the business. I am as certain as I ever am of anything of a legal nature that these provisions will be liable to put practitioners who are on the list in a very unfair and unreasonable position, and I think the Government ought to be very careful not to do anything of the kind. All I am asking at the moment is for the Lord Chancellor to consider what has been said.

THE LORD CHANCELLOR

I will gladly accede to the request of the noble Viscount; courtesy would demand as much. I will go into this matter again with my legal advisers, but I can assure him that I have already gone into it most carefully and have spent a long time over it. In answer to his request I will, of course, look into it again in the light of the observations he has made, in the light of the Amendment which he has already moved and in the light of those which remain to be moved.

VISCOUNT MAUGHAM

May I say publicly, because it is no secret, that I have some counsel's opinions which I should be quite glad to send to the noble Lord?

LORD LLEWELLIN

Before we part from this, may I mention one type of case about which I am a little anxious? Among houses largely of the weekly wage-earner type, consisting mostly of small dwellings, there is one biggish house which is probably occupied by a doctor, and nobody else wants a house quite of that size with a surgery going with it. The doctor already has paid quite a lot for that house and of course would hardly get anything for it if he put it in the open market and sold it to somebody other than a doctor. I do not want him to make a large profit, but would there be any provision where he could get back more or less what he paid? That is the kind of case I have in mind, where the market is so small and practically nobody else but a doctor wants to live in a house of that size, with the two extra rooms for a surgery and consulting room.

THE LORD CHANCELLOR

I will look into that.

VISCOUNT MAUGHAM

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

5.21 p.m.

VISCOUNT MAUGHAM moved, in subsection (4), to leave out paragraphs (b) and (c). The noble Viscount said: I would like to say a word about paragraphs (b) and (c), because I honestly do not believe that they can be quite satisfactory. I have said nothing about paragraph (a). That says: Where in pursuance of any partnership agreement between medical practitioners— (a) any valuable consideration, other than the performance of services in the partnership business, is given by a partner or proposed partner as consideration for his being taken into partnership; Then, to go to the effective words to join on to them: there shall be deemed for the purposes of this section to have been a sale of the goodwill.… I understand that that is necessary in order to prevent an evasion and therefore, as I am all in favour of evasions being stopped, I can understand that.

Then I come to paragraphs (b) and (c), which are also cases where there is deemed to be a sale of the goodwill. May I point out to those who are responsible for the drafting that I think the word "or" should follow after paragraph (a), but that is a trifle. Paragraph (b) says this: any valuable consideration is given to a partner, on or in contemplation of his retirement or of his acceptance of a reduced share of the partnership profits, or to the personal representative of a partner on his death, not being consideration in respect of past services of that partner or of property of that partner which is transferred or made available to the other partners or any of them far lair consideration. This only applies to partnership agreements, but the point which occurs to me is that it is the common thing in partnership agreements that a man should be taken into partnership for a period of years, and at such and such an age he should retire and should then be entitled to an annuity of some kind for the remainder of his life. As I understand it, as a result of any such bargain being made in the case of a partnership agreement there is deemed, for the purposes of the subsection, to have been a sale of the goodwill, with the result that a crime has been committed. That is the last thing in the world which was intended by the partners who were concerned. You have the old senior partner who is the most experienced of the lot at the time of the partnership. He thinks he is good for another ten years, and that after the end of the ten years he will go out on an annuity. Surely that ought not to be an occasion for accusing him and his remaining partners of committing a crime?

I submit with great respect that something ought to be done to prevent that result following. From my part I believe paragraphs (b) and (c) are both unenforceable. The only persons who would ever be hit by them would be persons who are aware of them and scouted them and did not take any precaution whatsoever. If the retiring partner receives a gift of furniture, the furniture which he has used perhaps for twenty years, he has received valuable consideration which is given to him on his retirement. Surely that is not a crime. Arrangements between partners on dissolution are so common. They assume hundreds of forms, and it is quite proper that a retiring partner should be well treated by the younger men who are remaining in the partnership. I would willingly try my hand at amending this in order to prevent these strange results, but I have come to the conclusion that I cannot do it. You cannot deal with the multifarious circumstances that arise on a particular medical partner retiring from his business and being given something by his remaining partners, who very often will be either his relations or among the very closest of his friends. They will do something for him, and they should be entitled to do something for him without being guilty of a misdemeanour mentioned in subsection (1).

The argument with regard to paragraph (c) is much the same, and that again is unenforceable in practice. You take in a partner straight from a teaching hospital. I take it you are a medical person who has had a large experience in the neighbourhood, and you are perfectly well known. You take in a partner and he has no experience whatever. How do his partners know what he is going to be worth for the purposes of the business? He may be works nothing; he may be a liability. Who is to say what remuneration should be given to a partner in such a case, coming in with no experience whatever? The tribunal who is to decide the question may come from different parts of the country, and they may not know what the conditions are in a particular small town or country district, and how suspicious clients are. Their clients may be miners who have very peculiar ideas and who will not accept everybody's medical attention. But however that may be, I do submit that neither of these paragraphs can really be usefully employed at all. In the interests of everyone it would be much better if they were omitted, leaving paragraph (a). If they are to stand as they are, I submit that in order to do justice they should have some qualification so as to enable reasonable arrangements to be made between partners, if you like not exceeding a certain sum or something of that kind, or a certain annuity which will not prevent the most reasonable arrangement being made between partners on such an occasion as is indicated in the paragraph. I beg to move.

Amendment moved— Page 29, line 19, leave out paragraphs (b) and (c).—(Viscount Maugham.)

LORD SALTOUN

Before the noble and learned Lord replies, may I venture very shortly to submit another case rather the reverse of that made by the noble and learned Viscount, Lord Maugham? Doctors, though superior to most of us, are subject to human frailties, and a partnership may find itself with one partner not doing his work as well as the standard of the partnership enjoins. The other partners may feel that they must induce him to leave off practising as soon as possible in order to preserve the partnership. It appears to me that that is a thing which will be very private to the partnership. The partners may very well feel that way, and the only way they can achieve that is by compensating the partner they wish to retire. I only wish to put that because I hope that the noble and learned Lord will consider it along with the matter which the noble Viscount, Lord Maugham, has raised.

THE LORD CHANCELLOR

I certainly will give a promise to consider these matters, including the one just mentioned. But I must say that I can see in the plainest way possible that if you leave (a) and do not have (b) you might have evasion in the easiest way imaginable. It does not require any great intelligence to think of possible evasions. For example, a young doctor comes along to an older doctor who wants to sell his practice and cannot, and enters into partnership with him. He pays nothing and is taken into partnership, but there is a provision that at the end of six months the older man shall go out of the practice and shall be paid £5,000. What is that but a sale of the partnership for £5,000?

VISCOUNT MAUGHAM

But surely that is covered by (a). I dare say the noble and learned Lord can think of some other instances.

THE LORD CHANCELLOR

I am putting a case where a young man goes into partnership and works over a period without paying any money down at the beginning.

Assume this. A man is taken into partnership and he does not pay a penny piece to the man whom he joins. But there is an understanding that when he has been a partner for six months the other partner shall retire and get £5,000. I say that is a form of evasion. Let me suggest another illustration. A young man, perhaps straight from training at a hospital, might go to a doctor, possibly a very distinguished doctor, and they might come to some arrangement whereby the young man will serve with him for a period of years—it might be a period of six years—without any payment, the understanding being that at the end of the agreed period the older man would clear out. In such a case the younger man would really have paid by deferred payments. In all these matters we have got to stop evasions. I beg the noble and learned Viscount to consider this from the point of view of evasion. We must prevent any practice whereby people might be paid sums of money twice over for the same thing.

VISCOUNT MAUGHAM

In the circumstances, I must withdraw my Amendment.

Amendment, by leave, withdrawn.

THE LORD CHAIRMAN

Is the noble Viscount moving his next Amendment?

VISCOUNT MAUGHAM

Perhaps the noble and learned Lord, the Lord Chancellor, will also include this in the consideration which he is giving to the other matters.

THE LORD CHANCELLOR

Certainly.

VISCOUNT MAUGHAM

That Amendment is to insert a proviso in subsection (4). I have been very desirous that this Amendment should be accepted: in other words, that it should be made legal to make an annual sum payable to the widow of a deceased medical practitioner or to a child. It is the commonest possible thing when a man is going into partnership and the other man in the partnership is rather old, to make provision for the latter's widow. That is a thing which at present would result in a crime. I cannot believe that the noble and learned Lord will not appreciate that provision ought to be made to allow for this.

Clause 35, as amended, agreed to.

Clauses 36 to 39 agreed to.

Clause 40:

Arrangements for general dental services.

40.—(1) It shall be the duty of every executive council in accordance with regulations to make as respects their area arrangements with dental practitioners under which, as from the appointed day, any person in the area for whom a dental practitioner undertakes in accordance with the arrangements to provide dental treatment and appliances, whether at a health centre or otherwise, shall receive such treatment and appliances, and the services provided in accordance with the arrangements are in this Act referred to as "general dental services".

5.35 p.m.

LORD TWEEDSMUIR moved, in subsection (1), to leave out "in the area" and insert "irrespective of the area in which he resides." The noble Lord said: I rise to move the Amendment which stands in the name of my noble friend Lord Teviot, and at the same time to make an apology on behalf of the noble Lord for his absence to-night, which is unavoidable. The title of the clause is: "Arrangements for general dental services." The purpose of this Amendment is to give wide and necessary freedom of choice to patients who wish for dental aid. As a principle, that freedom of choice is not disputed. The, Minister of Health, in another place, gave an assurance that the names of dentists might appear in the lists of more than one executive council. That will have the logical result that dentists will enter their names in the lists of every executive council, and it will give an unreal picture of the dental resources of one area.

In contradistinction to the position as it affects the medical profession, there is no compelling reason why patients should consult dentists in their own neighbourhood. Patients do not call dentists to their own homes, as they call doctors, except in very rare cases. There may be some of your Lordships who possess such great fortitude that you can approach a dentist's waiting room undismayed, but for the vast generality of mankind a successful dental treatment depends on the confidence that the patient has in the dentist. The patient can have that confidence only if he has a fair degree of freedom of choice. Clause 40 as it now stands is rather ambiguous. It can be construed as preventing a patient from being treated by a dentist outside his area and thus nullifying all freedom of choice. Finally, I may say that the Amendment will, I think, give proper effect to this principle of freedom of choice, which, as I say, is one not in dispute, and a patient may then be free to select his own dentist irrespective of where that dentist resides.

Amendment moved— Page 35, line 6, leave out ("in the area") and insert ("irrespective of the area in which he resides").—(Lord Tweedsmuir.)

THE EARL OF LISTOWEL

I had the advantage of hearing Lord Teviot put a point very similar to this during the Second Reading debate and that, taken in conjunction with the speech of the noble Lord who has just sat down, has added to my enlightenment. Lord Tweedsmuir has very rightly said that the object of the Amendment is to ensure complete freedom of choice for the person who has to resort to dental treatment. Now that is a principle upon which we are all agreed. We want to have complete freedom of choice for anyone to go to any dentist he may wish to look after him in any part of the country. I think that the object of the Amendment as drafted is to enable dentists to receive patients from outside the area in which they are in contract with an executive council. But this can already be done under the Bill as it now stands. Dentists will be able to do this by securing admission to the lists of more than one executive council—that is, any executive council they like to choose outside the area in which they happen to live. This, of course, already happens in the case of doctors. It will apply to dentists as well when the new service comes into operation.

The Amendment in its present form—and I should like especially to draw the noble Lord's attention to this—woulcl require, every executive council to make dental provision for any person anywhere, thus putting a responsibility on executive councils which it would be impossible for them, in practice, to discharge, with the limited number of dentists at their disposal in any given area. It would be impossible, for example, for an executive council in Surrey to be called upon to send dentists to Wales or to Scotland if the people in those parts of the country were not satisfied with the treatment they were getting in their own areas. That would be quite impracticable. I think the object the noble Lord has in mind is achieved by the Bill, and his Amendment would, in fact, make matters rather worse.

LORD LLEWELLIN

Do I understand from what the noble Earl has just said that a dentist will be able, as of right, to get his name included in the list of more than one area?

THE EARL OF LISTOWEL

Certainly.

LORD LLEWELLIN

Where can we find that in the Bill? While the noble Earl was speaking I have been looking, but I cannot see it. Or will it be in regulations to come henceforth? If the noble Earl does not know, I can go on speaking while the fact is ascertained. I think that it is right, where a person lives on the border of two or three of these areas, that he should have the right to be put on the list, although not necessarily in the area in which he resides. Otherwise, you might find that a market town, where a person from a country district does the shopping, was just not in the area—possibly by some strange arrangements of these regions. In such a case it would be absurd not to let the man have the choice of going to the market town where he normally goes.

THE EARL OF LISTOWEL

I apologize to the noble Lord, but he enjoyed the additional advantage of being able to expand his remarks. I am not a lawyer, and it gives me more difficulty, perhaps, than it does my noble and learned friend the Lord Chancellor, to explain, these legal niceties. I see that in Clause 40, subsection (2) (b) the dentist has a right to be included on the list of dental practitioners which will be published and prepared by these executive councils. What I understand this to mean, is that the dentist under the Bill has this right—a right which will be implemented by regulations issued by the Minister, because the subsection is governed by the fact that regulations will make provisions, etcetera, etcetera.

LORD LLEWELLIN

That is the subsection at which I have just been looking. What I was doubtful about was paragraph (b) for conferring a right … on any dental practitioner who wishes to be included in any such list to be so included. I am sure that the noble Earl wants to meet this particular point, and I suggest that if it is to be put right the subsection should be made to read "in any such lists." This refers to one list only. I do not know what my noble friend will do with this Amendment, but I suggest that the noble Earl should look into it, and see if it cannot be made quite clear before the next stage.

THE EARL OF LISTOWEL

I will gladly look into that, but in the preceding subsection there is a reference to "lists" in the plural, and the subsection following refers to the list.

LORD TWEEDSMUIR

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41:

Supplementary ophthalmic services.

41.—(1) Without prejudice to the duty of the Minister under Part II of this Act to provide, as part of the hospital and specialist services, services in connexion with the diagnosis and treatment of disease or defect of the eyes and the supply of optical appliances, it shall be the duty of every executive council to make as respects their area, in accordance with regulations, arrangements with medical practitioners and opticians having the prescribed qualifications for securing, as from the appointed day, the testing of sight by them and the supply by such opticians of optical appliances, and the services provided in accordance with the arrangements are in this Act referred to as "supplementary ophthalmic services."

5.44 p.m.

VISCOUNT CECIL OF CHELWOOD had given Notice of a number of Amendments in subsection (1) designed to secure the provision of treatment for the deaf as part of the hospital and specialist services. The first Amendment was to insert "or ears" after "eyes." The noble Viscount said: This Amendment is a very simple one. It is merely for the purpose of putting ears on the same footing as eyes. That is the whole point, and that is the only point. There are a good many points which follow the first Amendment, but they are all drafting. If the Government accepts my general proposal, there is no doubt that the drafting can be put right without any difficulty. It is a very remarkable fact in our history that deafness has never been treated, in the popular estimation, as a calamity in the sense that blindness is. It is very odd; but it is so. That is very generally felt, and the result is that there is a great tendency to make provision for blindness which does not extend to deafness.

In this particular case, I would venture to submit to your Lordships that in fact deafness is at least as serious a hardship, and at least as debilitating in every way, as blindness; and indeed much more so. It is a very, very serious matter indeed. It embitters life far more than does blindness. I do not know why, but I speak from some experience and knowledge of the subject. I am satisfied that any provision made in the laws of this country to assist the one ought to be extended to assist the other. I have no desire to introduce anything at all controversial into this matter, but I am bound to point out that so far it has been very difficult to get even officials in this country to recognize that that broad principle of justice should be carried out.

By way of illustration, may I give one particular instance of the kind of thing that I have in mind? As your Lordships probably know, there has been a very great advance in the manufacture of hearing aids in the last ten or twenty years. That advance has gone on in America quite as much as, and perhaps even more than, it has in this country. American manufacturers and experts have produced a number of machines which some people think are in some respects superior to anything we have here. As far as my own experience goes, without generalizing at all, I must say that I have seen and tried American machines and they appear at least equal to—possibly better than—anything we have here. In those circumstances, it is most unfortunate that it is absolutely forbidden to import into this country any American machines, or parts of any American machines. That is the position which I understand exists. If you attempt to do it, you are liable to penalties for smuggling. I cannot see any defence for that position. I am told that it is obedience to the doctrine that prevails in the Treasury about the necessity of discouraging imports to this country. It seems to me, however, that that kind of thing would never have been allowed in the case of medical appliances designed to relieve other medical defects and diseases. Because deafness is not treated on the same level of importance, these very oppressive and, as I think, very pernicious differentiations are indulged in.

In this Bill, we find that although elaborate provisions are made for dealing with defects and disease of teeth and eyes, there is nothing whatever as regards ears. I cannot see any defence for that. I venture to submit that it is very important, particularly with children, that careful and early treatment should be adopted in certain cases to arrest diseases of the ear, in the same way as early treatment may arrest diseases of the eye. The more these new instruments are developed, the more important it will become that people should be examined so that it will be possible to know what particular instruments will be most effective for their disease. Therefore, on general grounds, if anything is to be done for the health of the people of this country, deafness should not be excluded. It is at least as important a subject as any other. I press the Government to include deafness in the ambit of this Bill not only on the ground that great benefit would result thereby, but also because it is of the utmost importance to strike at this prejudice, which exists everywhere, that deaf people are not entitled to the same treatment as the blind and people suffering from other physical defects.

Amendment moved— Page 35, line 44, after ("eyes") insert ("or ears").—(Viscount Cecil of Chelwood.)

LORD HORDER

I want to support the noble Viscount in this Amendment. I agree with him that the same prominence, I think it is correct to say, has never been given to defects of hearing as has been accorded to defects of sight. I should be detaining your Lordships too long if I tried to give what I believe to be the reasons for that. It is partly because the study of the ear has not quite the same fascination as the study of the eye. There are, perhaps, some reasons why, in respect of the calibre of the scientific and medical personnel engaged, the ear has not hitherto attracted the same degree of attention as other organs. It is a fact, as the noble Viscount has said, that not only in this country but I think universally the deaf patient does not get the same square deal, if I may use that expression, as the person whose sight is failing, or who is actually blind. Therefore, as the noble Viscount has suggested, this is a great opportunity, and it should be welcomed, for ensuring that in the new medical services scheme there will be provision for research and study of the deaf person, at all stages of the development of deafness, and of the production of aids for hearing, as to which I notice, shall I say, some lack of uniformity in the words chosen by the noble Viscount.

I think it is the principle that Viscount Cecil wishes to bring to your Lordships' notice rather than the use of the specific terms. For example, one finds in the Amendments the word "otological." In my profession the better word would be aural. I think we must be a little careful in the connotation of the term "otologist" as against the maker of hearing aids. Some of my colleagues who do study diseases of the ear might be a little appalled by the confusion between those two practitioners. They are both practitioners, but one is a medical practitioner and the other is a maker of instruments. However, my point is that I do very strongly support the principle underlying the series of Amendments down in the name of the noble Viscount.

VISCOUNT ELIBANK

I wish my noble friend the Duke of Montrose was here to-day. He has in your Lordships' House over and over again—I have certainly heard him three or four times—raised this issue of deafness, and especially in regard to aural instruments. I am sure he will regret that he is not here to-day to support the Amendment of my noble friend Viscount Cecil of Chelwood. I am myself not yet deaf, but I believe that the time may come when I shall join that band of sufferers. I have many friends who are deaf. I have friends who every day are seeking for a better instrument to alleviate their deafness, and one constantly hears from them of the difficulties they have in doing so. I think in raising this Amendment to this Bill, the noble Viscount, Lord Cecil, has done a very great service. I do hope, especially with the support that has been given by Lord Horder, with his intimate and special knowledge of this question, that the Government will accept the principle, and that, even if the words proposed are not the exact words that ought to be included in the Bill, some words will be found to meet what my noble friend desires.

THE EARL OF LISTOWEL

I can say that we all agree with everything that was said in general terms by the noble Viscount, Lord Cecil, by the noble Lord, Lord Horder, and by the noble Viscount, Lord Elibank, on the subject of the deaf. We all accept the principle of equality of treatment as between those who have defects of hearing and those who have defective eyesight. I can assure the noble Viscount that we desire in our new health service the same opportunities for the deaf as will be given to those who have defective vision. I think that the noble Viscount's main object was to establish that point. He said that in the past there had been a great deal of prejudice. I can assure him that that prejudice does not now exist in the mind of the Government or of those who will carry out the functions of providing health services under this Bill.

But I think he would also expect me to address myself to the terms of the Amendment, which I will now do. What the noble Viscount is asking for in his Amendment is that we should set up a supplementary service for the deaf which would include the provision and maintenance of hearing aids and the testing of hearing, and which would run parallel to the supplementary ophthalmic service, which is going to be organized in the different areas by the executive councils. But I venture to think—and I submit this for the consideration of the noble Viscount—that the service he wants for the deaf would be better carried out under present circumstances by Part II of the Bill, that is to say, by the hospital and specialist services. In our view the service ought to be based initially on the hospitals, where the best use can be made of the very limited number of specialists. Later on, of course, as time passes, it should be possible to set up hearing clinics in conjunction with health centres as part of the local health service. We are, of course, already pledged—I think this pledge was given in your Lordships' House by the noble Lord, Lord Walkden—to provide for the widest possible use of the new and cheaper type of hearing aid.

The production and distribution of these appliances will be done by the Government or public authorities in order to keep the price down to the lowest possible level. I think I can carry the matter a little further now. We mean to start the distribution of the new hearing aids from the outset of the new National Health Service and, if the quantities of these appliances are available, we shall not wait for the appointed day before we begin.

I do see one serious difficulty about the noble Lord's Amendment, and it might even prejudice the limited service we are able now to provide for the deaf. If this supplementary service were to be given by otologists and by specialists, which I think is what the noble Viscount wants, we should have to take them from the hospitals because there are not enough of these specialists at the moment to provide for both types of service—for a hospital service and for a local service. Moreover, the number of deaf people which, I believe, are about 400,000, is so much smaller than the number of people who suffer from defective vision which, I believe, numbers about 4,000,000.

VISCOUNT ELIBANK

May I ask my noble friend how he arrives at the figure of 400,000 deaf people?

THE EARL OF LISTOWEL

I will gladly give the noble Lord after the debate the figures from which these were computed. I am afraid I cannot do so at the moment. But the very small number of deaf people which I have mentioned, compared to the very large number of people with defective vision, does give an impression that there is not the same justification for a supplementary service for the deaf as there would be in the case of those whose eyesight is defective. I do think there are those difficulties which would arise from the terms of the Amendment tabled by the noble Viscount, but I can assure him that we accept everything he has said on the matter of principle, and that we shall do our best to give just the same attention and treatment to the deaf as to those suffering from other defects of health.

VISCOUNT CECIL OF CHELWOOD

I am very much obliged to my noble friend for his sympathy and his promise of doing something in the future, but I should like, I confess, to go a little further than that and have something in this Bill. I may not have put it in the right place. This is a complicated Bill and I do not pretend to have studied it with the care no doubt I ought to have shown, but I should have thought this was a good place to put in a broad general principle. It only gives power to the authority under the Bill to establish whatever they think is necessary for the deaf. It does not do more than that. I should have thought that to put in some form or other a reference to the deaf was a pledge of tae genuineness of the Government's interest in this matter.

I confess I am not satisfied. I do not want to make any attack on anybody, but I am not satisfied that that interest extends to all Departments because I have not been able to find any very good evidence that it does. I was able to inquire what was being done about these new hearing aids, and I found, in point of fact, that before you can get anything done you have got to get the consent of four Departments. You have got to get the consent of the Ministry of Health, of the Board of Trade, of the Ministry of Supply and then last, but certainly not least, of the Treasury. The result is that wheels do not move very rapidly. I do want the Government really to put their backs into this because if they do not I am sure nothing will be done. Much as I value the sympathy of my noble friend, I would like to see it actually in cash.

So far as the new aids he has referred to are concerned, the position is simply this: that we were promised new aids, new cheap aids, and "cheap" means something about £8 for an instrument. That is not very cheap. These cheap aids were to be available for everybody. A very important Committee sat and investigated them, and they were satisfied they could make these aids better than anything that existed and cheaper. I should like to say that I have not been able to see any of them, and I do not believe any of them have been manufactured at all as yet. I am told there is no prospect of their being manufactured in any numbers till 1948, and, therefore, I am justified in saying that something is required to stir up the real interest of the Departments in this question. I very much hope the Government will not resist putting in the word "ears" as well as "eyes," even if they have to alter the other parts of my Amendment which, I quite agree, were only my efforts at drafting. I hope the Government will not resist the insertion of general principles. It is right to deal with ears at the same time there is the right and power to deal with eyes. I do not want to make anything compulsory, I want to make it possible for authorities to take action.

THE EARL OF LISTOWEL

I can quite assure the noble Viscount of the existence of these deaf aids. I have seen one myself which was made by the Post Office Research Station at Dollis Hill.

A NOBLE LORD: The one existing?

THE EARL OF LISTOWEL

I will not say that. I am just bringing my testimony to bear. They will certainly be put into manufacture as soon as possible. About the undertaking which the noble Viscount wanted on the subject of the deaf, I think I can say this, that we will look into the position and see whether explicit reference cannot be made to the deaf in Part II of the Bill which, I think, would be the appropriate part for this purpose. I cannot suggest a clause at the moment but I will look into the matter and see whether anything can be done on this line between now and the Report stage.

VISCOUNT CECIL OF CHELWOOD

In these circumstances, I will withdraw. I am very much obliged to my noble friend, but I hope he will be as strong when it comes to dealing with his colleagues as he is in this House.

Amendment, by leave, withdrawn.

6.9 p.m.

THE EARL OF LISTOWEL moved in subsection (1) to leave out "and opticians." The noble Earl said: This is the first of a series of Government Amendments, and as they all serve the same purpose I think it will be convenient for your Lordships if I describe the purpose quite briefly. The object of these Amendments is to make clear on the face of the Bill the distinction between an ophthalmic optician, who both tests sight and supplies spectacles, and the dispensing optician who only supplies spectacles. I understand that a Committee of Ophthalmologists and Opticians, sitting at the present time to consider questions arising on the future eye services, have recommended that this distinction should be brought out clearly in the clauses of the Bill—in this clause and in the Definition Clause. I beg to move the first Amendment for this object, standing in the name of the Lord Chancellor.

Amendment moved Page 36, line 2, leave out ("and opticians").—(The Earl of Listowel.)

LORD CHARNWOOD

I would like to thank the Government for introducing these Amendments, and to say how warmly I support them on behalf of my profession. The Government are giving us a very large measure of what I was asking for.

On Question, Amendment agreed to.

THE LORD CHAIRMAN

The remaining Amendments to this clause in the name of the noble and learned Lord, the Lord Chancellor, are all consequential. Perhaps your Lordships would allow me to put them all together, to save time.

Amendments moved—

Page 36, line 2, after ("qualifications") insert ("ophthalmic opticians and dispensing opticians")

Page 36, line 4, leave out ("them") and insert ("such medical practitioners and ophthalmic opticians")

Page 36, line 4, leave out ("such") and insert ("ophthalmic opticians and dispensing")

Page 36, line 14, leave out from ("practitioners") to ("and") in line 15 and insert ("having the prescribed qualifications, ophthalmic opticians and dispensing opticians, respectively")

Page 36, line 23, leave out ("and opticians") and insert ("ophthalmic opticians and dispensing opticians, respectively")

Page 36, line 27, leave out ("or optician")

Page 36, line 28, after ("qualifications") insert ("ophthalmic optician or dispensing optician")

Page 36, line 29, leave out ("part of any such")

Page 36, line 33, after ("or") insert ("ophthalmic")

Page 36, line 35, at end insert ("ophthalmic or dispensing")

(The Earl of Listowel).

On Question, Amendments agreed to.

Clause 41, as amended, agreed to.

Clause 42:

Disqualification of practitioners.

(4) An appeal shall lie to the Minister from any direction of the Tribunal under the last foregoing subsection, and the Minister may confirm or revoke that direction.

THE EARL OF LISTOWEL

My Amendment to this clause deals with practically the same thing as we discussed a few minutes ago. It draws the distinction to which I have just referred, and applies it to the clause dealing with the disqualification of practitioners. I beg to move this Amendment. The subsequent Amendments on page 37 are consequential.

Amendment moved— Page 37, line 16, leave out ("or").—(The Earl of Listowel.)

On Question, Amendment agreed to.

THE EARL OF LISTOWEL

The next Amendment is consequential. I beg to move.

Amendment moved— Page 37, line 17, after ("of") insert ("ophthalmic").—(The Earl of Listowel.)

On Question, Amendment agreed to.

THE EARL OF LISTOWEL

The next Amendment is also consequential. I beg to move.

Amendment moved— Page 37, line 18, at end insert ("or (f) of dispensing opticians undertaking to provide supplementary ophthalmic services").—(The Earl of Listowel.)

On Question, Amendment agreed to.

6.14 p.m.

THE MARQUESS OF READING moved to leave out subsection (4) and insert: (4) Any person aggrieved by a direction of the Tribunal either under the preceding subsection or under subsection (8) of this section may within one month after the date on which notice is given to him by the Tribunal of their direction appeal against the direction in manner provided by Rules of Court to the High Court, and in any such appeal the High Court may make such order or give such direction in the matter as it thinks fit.

The noble Marquess said: This Amendment is very similar to the Amendments standing in the name of my noble friend Lord Teviot, who, as your Lordships are aware, is unable to be present. The point of it very briefly is this. Clause 42 establishes a Tribunal which is charged with certain functions, really to decide in the case of a practitioner of the various kinds whose case has been brought to their notice by one of the executive committees whether that practitioner is proving an efficient servant to this National Health Service. That is the Tribunal that is set up, and I will say a word further about it in a moment. What I am particularly concerned with is the appeal from that Tribunal.

The Tribunal itself is thus constituted. It consists of three persons, of whom only one is a person of legal experience. One is a barrister or solicitor appointed by the noble and learned Lord, the Lord Chancellor, one is a member of one of the executive committees somewhere, who is appointed for this particular purpose to be a member of the Tribunal, and the third is a member of the panel. According to the particular branch to which the accused person belongs—that is whether he be a doctor, a dentist a pharmacist or an optician—so this third member of the Tribunal is chosen from the panel as being a person carrying on the same type of practice. That means that this Tribunal, only one member of the three being a person of legal experience, is charged with this function. It is charged with the task, as your Lordships will see from subsection (1) of Clause 42, of inquiring into cases where representations are made in the prescribed manner to the Tribunal by an executive council or any other person"— and this is what they have to consider— that the continued inclusion of any person in any list prepared under this Part of this Act. … would be prejudicial to the efficiency of the services in question. If this Tribunal with one legal and two lay members decides that the continued inclusion of a particular individual in a list would be prejudicial to the efficiency of the service, they can either exclude him from a particular list on which his name appears, or they can exclude him from any list anywhere in the country of practitioners employed under the National Health Service Act.

Those are very formidable powers to trust to any tribunal, particularly to a Tribunal where only one member of the three has any legal experience of any kind, because more and more as this service grows and embraces a greater proportion of the medical practitioners in the country exclusion from this service is going to mean professional death to the person concerned, and that sentence of professional death is in the hands of this Tribunal with two lay members and one legal member. What is the next step? If this Tribunal goes wrong, if the legal gentleman makes a mistake, or if the legal gentleman is outvoted by his two lay colleagues, as he may well be, there is the great concession to the unfortunate person on whom they have imposed this sentence of professional death that he can appeal to the Minister, who is virtually the person who employs him for this purpose and who therefore not only comes into this hearing as to all intents and purposes a party to it because he is responsible for the efficiency of his service but at the same time comes into it—and there is provision for it I agree—as deputing possibly the task of hearing this appeal to some person on his behalf. To whom? We know nothing. To a member of his Department? To a civil servant, perhaps with legal experience, but to a civil servant, who himself is again subject to the Minister. In that event the Minister now finds himself in the even stronger position of being the master not only of the appellant to this appeal to this Tribunal but also of the judge as well. That must be an intolerable position.

This is not a new Amendment. I must take a few moments upon this, because I think it is important and I insist rather strongly on this Amendment for two reasons. First of all, on general grounds and, secondly, on the special grounds of this Bill. On general grounds it seems to be yet one more attempt in what is every day becoming more evidently a policy of excluding the Courts of Law, I will not say from interference, although that appears to be the word that is most favoured, but from participation in the affairs of the country. I also insist on it because I think it is unjust to the whole body of practitioners under this particular Bill.

An Amendment was introduced in another place in practically the same if not exactly the same terms as the Amendment for which I am now contending. If I may pause for one moment to tell you of its history, it is this. When the Bill appeared in another place in its original form it contained this provision, that the appeal should be to the Minister. The Committee did not like that proposal and by a majority of one vote it rejected the decision that appeal should be to the Minister. It was then proposed that appeals should be to a High Court Judge, as is now proposed. The Committee, however, then found itself in a difficulty and proceeded to reject that suggestion as well. Therefore, when the Bill left the Committee in the other place there was no appeal at all because the Minister had been struck out and nobody else had been put in. In favour of this Amendment I must add this. When it was discussed in Committee in another place it was moved by a Liberal—I follow the tradition—and supported by a Conservative, a National Liberal, a Socialist, and a Communist. In the absence of certain Irish members who are, I believe, entitled to take part but who still do not take part in the proceedings in another place, that seems to me to be a fairly representative cross-section of the composition of that House. As I say, it failed to be accepted by the Committee by only one vote.

On the Report stage, the position of the Minister as the appeal tribunal was reaffirmed. The Minister, in resisting—and very strenuously resisting—this Amendment in Committee and on Report stage, evolved some somewhat singular constitutional doctrines into which I do not wish to follow him. He contended that if you allowed the appeal to the High Court you were thereby permitting the Judiciary to replace the Executive, that any provision of that kind was a great breach of Constitutional Law and that a High Court judge was quite an unsuitable person to deal with this sort of case. He then went into a disquisition on the distinction between what he called qualitative and quantitative evidence—a refinement into which my inexperience does not permit me to follow him. He then proceeded to say that if this Amendment was passed it would mean that the High Court Judges would become involved in industrial disputes and—a very singular and a very unhappy phrase—that would lead to judicial sabotage of Socialist legislation. I cannot help thinking that the Minister, on reflection, must have wished that he had not used that particular form of words, even though, with a very slight variation, he used it both in Committee and the Report stages. He made some valiant effort to explain away the significance which that phrase would convey, and surely was intended to convey, to the ordinary person, but so far as I am concerned I am bound to say that his effort did not greatly advance the matter.

I do not propose to say more about it than this. I have put the fact that at the present moment the appeal from this Tribunal on this vital point is to the Minister and the purpose of this Amendment is that it should go, not to the Minister, who is an interested party, but to somebody, a High Court Judge, who can approach a question of this kind with the experience of weighing evidence and with the detachment, the balance and the skill which we have all, whether we belong to the legal profession or not, long come to acknowledge as being the great gift of the High Court Judges of this country. I beg to move.

Amendment moved— Page 37, line 33, leave out subsection (4) and insert the said new subsection.—(The Marquess of Reading.)

VISCOUNT SIMON

I think all of us who have heard the speech of my noble friend—I did not hear the opening sentences—must have been greatly impressed by the cogency of the argument. I do not want to repeat it; I wish to address myself, if I may, to the Lord Chancellor, and to ask him whether he really thinks that argument is one which can reasonably and properly be withstood.

LORD MESTON

I hope the Government will accede to this Amendment. I have the feeling that this is probably the last time when this point can be taken. Let us see for a moment what is meant in effect by an appeal to the Minister of Health. The Minister of Health is one of the busiest men in the country. He is the confirming authority under the Housing Act; before the constitution of the Ministry of Town and Country Planning he was the appellate authority under the Town and Country Planning Act; he is an appellate authority in various other matters, and now it is proposed that he shall be the appellate authority under this Bill. He is never a member of your Lordships' House; he is always a member of the other place. He has his duties to his constituency; he has his duties as a Minister, and he is frequently called in for consultation with the Cabinet. In view of all those circumstances it is impossible that he should attend to any of these matters himself. What does he do? He appoints someone to make a report to him, and I say, without any hesitation whatever, that if the Minister of Health can read and digest one per cent. of the reports which are put before him by his inspectors, then indeed he must have solved the problem of working forty-eight hours in a twenty-four hour day.

Then let us consider the jurisdiction of the Minister under this clause. His jurisdiction is covered by the words "prejudicial to the efficiency of the services." There are certain things a doctor must not do; they are well-known and touch somewhat delicate matters, and I do not propose to mention them. If a doctor does any of those things he is liable to be found guilty of gross professional misconduct and in the normal course of events he appears before the General Medical Council. There must be no misunderstanding at all on this point. In the first place, this Bill has nothing whatever to do with the General Medical Council; and in the second place, when this Bill was in another place it was stated by the Government, as it will be stated to-day in your Lordships' House, that gross professional misconduct does not come within the words "prejudicial to the efficiency of the services." The point I wish to make is that the Bill does not say so; the Bill does not make any such limitation. We all admire and accept any undertakings and assurances given by Ministers of the Crown, and we know that they will be honoured by those Ministers; but people come and go, and there is no guarantee that in the years to come any assurance or undertaking given by a Minister will be honoured; it may even be forgotten.

There are a great number of things a doctor may do which may not be gross professional misconduct. They may be on the borderline or they may concern, strictly speaking, his medical duties as apart from his moral conduct. For example, a doctor may have a tendency to absorb too much alcohol; he may be inclined to be unduly flippant with his lady patients; he may possibly prescribe the wrong medicines, he may use bad language on the public highway to the annoyance of his patients and other people; he may be negligent or he maybe lazy. All those things come within the words "prejudicial to the efficiency of the services." Is it really suggested that a man who has devoted his whole life to medicine should be professionally destroyed on the report of an inspector which is probably not read by the Minister? In support of the noble Marquess who has moved this Amendment, I would submit that the practice of the Executive to exclude the Law Courts from their lawful functions has increased, is increasing and ought to be diminished.

THE LORD CHANCELLOR

It is unfortunately the fact, as we have been reminded, that we are fighting over a very well-trampled battle field—in fact there is hardly a blade of grass left on it. It is the fact that on the Committee stage in another place, as the noble Marquess has said, one moment when the Government lost by one, then there was a general muddle and in the later stages of the Bill the Minister was reinstated. This matter, as he knows, has been very closely considered. I frankly say that I have not in mind what the Minister said, but I am sure that whatever else it was, it was said in a forcible and direct manner. The long and short of the question is that this is a matter on which the Government are bound to stand. I remember the noble Marquess raised some similar Amendment on industrial insurance, and I remember being very stubborn then—at least he thought I was very stubborn—but he did not press the matter to a Division. I quite understand that he desires to do so in this case.

This is the short position, as I put it to your Lordships. This Bill is a development of the old National Health Insurance Bill. What was the position there? The position there was that the question of the removal of a doctor from a list was a matter for the Minister. He would, and in practice did, appoint some body to investigate the matter, but there was no formal tribunal such as there is here. It was a matter for the Minister, and the Minister alone. I think I can now say that I was closely connected with that National Insurance Bill, and I will say that I have never heard one single complaint from any doctor about the machinery of that Bill or the way in which it worked—not one.

I note that the proposal comes from one who, like myself, has been born and bred in the law, and therefore has a profound respect for the provisions of the law and His Majesty's Judges, and it does not come from doctors. I am not saying you could not get some doctors to support this proposition, because you could get some doctors for any proposition I suppose, but I think I should be right in saying that there is no demand for this from the doctors at all. The Insurance Act worked perfectly well. The analogy is not complete I readily concede, but I ask you to consider this. We do not want the doctors to become civil servants and they are not going to become civil servants, but they are in some sense in public employment and the analogy between employer and employed is obviously there.

What is the position there? You entrust the Minister with a duty, the duty of seeing that there is an efficient service, and then you are proposing to deprive the Minister of his right to remove somebody whom he thinks is unsuited, because that is what it comes to. You have your Tribunal and the Tribunal reports that the man is inefficient and his retention on the list is prejudicial to the public service. The Minister at the present time, as the Bill is drafted, has the last word. He can decide whether the man is to go or not to go, and as the Minister is entrusted with securing the efficiency of this service, that is all right. What is the position if there is an appeal to the Court? supposing the Court thinks the man can safely be entrusted to continue on the list and the Minister thinks he cannot. Of course, the Court wins, but the Minister remains charged with the statutory duty of providing for an efficient service, and he can honestly lay his hand on his heart and say that he thinks the man cannot be trusted.

THE MARQUESS OF READING

The same thing can happen on appeal by somebody appointed by him.

THE LORD CHANCELLOR

Then the Minister has the last word. The noble Marquess will listen, I am sure, to the argument I am putting. If you entrust the Minister with the duty of securing an efficient service, that must mean a service which he considers to be efficient. It is impossible to ask the Minister to lose control of the thing and thereby deprive himself of the right of dismissal, if he thinks dismissal is the best course. His must be the last word if you are going to entrust him with this public duty. You cannot impose upon a man a duty and then take away from him the necessary authority to see that the duty is carried out. The analogy of the employed and the employer, or if you like for this purpose, the civil servant, should be considered. It is quite impossible, of course, that any civil servant should have any investigation before any Court or anybody else as to whether he should or should not be dsmissed.

It is for that reason that I say with regret—I know that it is no good taking up any more time, because I know I am not going to convince the noble Marquess, and he will not convince me—that it is obviously a matter on which we shall have to take the opinion of your Lordships' House. Here is an issue which I agree is an important issue, and I regret I am unable to accept the proposal of the noble Marquess.

VISCOUNT CRANBORNE

May I say a very brief word about this? The noble and learned Lord, the Lord Chancellor, has said that there is no demand for this from the doctors. I frankly do not know whether there is a demand for an appeal to the High Court from the doctors, but there is a demand—and I have come across it myself—for greater protection than is given under the Bill as it stands at present. This is a point on which doctors are extremely nervous, and not unnaturally so. They think they might be hauled up before a Tribunal on what has been described as a borderline case, a case which might have gone one way or the other, and on the decision of the Tribunal rests the whole of their livelihood and future. I wonder whether it would not be possible to insert in this clause some greater protection for the doctor than is already there. I think I am right in saying that, under this clause, if he appeals against a decision of the Tribunal there is no provision for him to be represented by counsel on the appeal, and there is no provision for him to call evidence. In a matter of such vital importance to him surely those are elementary rights; and even if the Government did not find it possible to go so far as to grant an appeal to the High Court, I do feel they ought to consider, before the Report stage, whether there is not something they could do to make every doctor confident that his case will be fully and fairly heard.

I know people say, "Refer this to the Minister: refer that to the Minister." We all know how little time a Minister has to give personal attention to these matters. It will not be the Minister who decides this. He may get a paper brought up to him at the last moment. It is therefore essential that in the earlier inquiries the doctors should be given the benefit of counsel and of calling evidence, to which benefit he has a perfect right. I would ask the Government whether they would not consider before the Report stage if something of that kind could not be done.

THE LORD CHANCELLOR

I respond at once to that. I would gladly undertake to do that to see if I can find some solution.

LORD LLEWELLIN

It seems to me that one of the important things is that the person who is before this Tribunal shall, if he wishes it, have the right to have the hearing in public. That, I think, is quite vital, because otherwise everything is done behind closed doors. One hears at the present time questions about setting up a Royal Commission in regard to the conduct of Courts-Martial. Field General Courts-Martial are held in public and people can go to them. I believe, as my noble friend has just said, that the doctor should be entitled to be represented by counsel and should be entitled to call evidence. My noble friend also requested that the tribunal should sit in public, and I believe that that would give a great deal more security. And I would also suggest, if I may, to the noble and learned Lord, that it might be well to do as is usually done in these Acts and put in that the practising barrister who is chairman of the Tribunal shall be of a certain number of years standing. That, of course, is necessary in the case of a County Court judge and in several other cases. I believe the minimum period is usually put at seven years standing. If we could deal with this matter in that kind of way between now and the Report stage I do not see why we need go on to trample down the few remaining blades of grass on this well-trodden battlefield.

THE LORD CHANCELLOR

I am very much obliged to the noble Lord for his suggestion. I think there is a quite possible way out of the difficulty. So far as the status of the Tribunal is concerned I must confess that I cannot conceive myself appointing as Chairman anybody who has not at least the standing mentioned by the noble Lord, and indeed very considerably over that standard. I should want to get a very good man indeed for this sort of work—the most reliable man that I could find. With regard to representation I should think that there ought to be the fullest opportunity of representation by counsel, by a solicitor or by a friend. As to the hearings taking place in public, I confess frankly that I have an old-fashioned prejudice in favour of Courts of Law administering justice in public. I think that it has a most beneficial effect on the courts. I strongly suspect that the people who would object to the hearing being in public would be the unfortunate practitioners. They would almost always, I should think, wish to have the hearings in private.

The noble Lord has suggested that the practitioner should have an option in this matter. We might consider that, and anything that I can do to make it quite clear that these people are going to have a fair deal before the Tribunal I will do. I quite agree with the noble Viscount the Leader of the Opposition that we who have to sign vast numbers of papers are bound to rely on those who advise us. You cannot go through these things yourself. You write "Approved" at the bottom and hope for the best. You cannot possibly apply your own mind to all these matters. It is not physically possible. As I say, I will do everything I can between now and the Report stage to see that this Tribunal is a really satisfactory body. On the actual point of the Amendment, I am afraid that I cannot accept it.

THE MARQUESS OF READING

I do not think that really the matter has advanced very much further, but if the noble and learned Lord is going to reconsider the position to any degree I think that it would be only right that I should wait and hear what proposal he has to make on the Report stage, in answer to the suggestions which have been made by noble Lords to-day. I am, therefore, quite prepared, though reluctantly, to withdraw the Amendment at this stage, but, of course, always with the possibility of re-introducing it at the Report stage.

Amendment, by leave, withdrawn.

VISCOUNT ADDISON

In view of the hour and the arrangement which was come to, although we have not finished the clause I think it would be for the convenience of your Lordships, and in accordance with our understanding, that we should resume. I therefore move that the House do now resume. I take it as understood that we shall get through the remainder of this clause without much trouble.

House resumed.