§ 9.18 p.m.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (BARONESS SEROTA)
My Lords, I beg to move that this Bill be now read a second time. This measure can be briefly described as one designed to introduce some sensible and very necessary modifications in the financial and disciplinary powers of the General Medical Council. The Council, which is an independent statutory body, has had the task of governing the affairs of the medical profession ever since 1858, by supervising and improving medical education, by keeping and publishing a register of duly qualified doctors and by taking disciplinary action when 1162 required in cases of criminal convictions or serious professional misconduct. It regards itself, and acts, not as an association for protecting professional interests, but as an independent and impartial body whose primary task is to protect and serve the best interests of the public. I know that this view is very strongly held by the present distinguished President, the noble Lord, Lord Cohen of Birkenhead, who will be speaking to us in this debate to-night; and I should like, to take this opportunity—and I believe that noble Lords present will join with me—to pay tribute to the services rendered by him and his colleagues on the Council. They have been fully consulted about the framing of this Bill, and are in full agreement with the proposals it contains. Its provisions will, of course, be of particular concern to the medical profession. They are unlikely to be of direct interest to the general public as a whole—except in one extremely important respect which I will mention in a few moments.
I should also explain, before embarking on a brief description of the main provisions of the Bill, why it does not include the provision for vocational registration recommended by the Royal Commission on Medical Education under the distinguished chairmanship of the noble Lord, Lord Todd, whereby a doctor on satisfactory completion of a specified period of training in a specialty could become a registered practitioner in that specialty.
The Royal Commission saw this as complementary to their recommendations for postgraduate professional training, and envisaged that the General Medical Council would act as the registration body for vocational registration, as it already does for registration of basic qualifications. Legislation will be required to allow the General Medical Council to implement the Royal Commission's recommendations on vocational registration, and this raises a number of complex issues which necessarily take time to explore. Moreover, it cannot properly be considered apart from the other recommendations of the Royal Commission relating to post-graduate medical education which the Government are still examining. My right honourable friend the Secretary of State for Social Services, in the Statement which he made 1163 in another place on April 14, about medical school places, said that he had received most, but not yet all, of the views of the various bodies he had been consulting on the Royal Commission Report, including their recommendations on the development of postgraduate medical education. When these necessarily wide consultations had been completed he would make further announcements as necessary. I know that noble Lords—and indeed, noble Baronesses—are waiting impatiently for a further Government statement on these important issues, and I hope that it will be possible to make one before too long. In the meantime, the provisions of this Bill are urgently needed and I can assure your Lordships that they will in no way prejudice any future action on the recommendations of the Royal Commission, including the important question of vocational registration.
Turning now to the Bill itself, its main purpose is to enable the General Medical Council to require an annual fee to be paid by a doctor for the retention of his name on the Medical Register. Unlike most professional bodies, the Council cannot at present charge such a fee and hitherto its income has been derived from the fees paid by doctors on initial registration. The initial registration fees are at present £9 for provisional registration and a further £12 for full registration, which are considerable sums for a young doctor in his first 12 or 18 months of practice and cannot well be increased. Even so, they have not provided the Council with a sufficient or dependable income. The Council's expenditure has trebled since 1960 and will, we understand, continue to rise. Their annual deficit is now considerable and they badly need a means of increasing their income and placing it on some more flexible basis.
Clause 5 is an attempt to remedy this situation by empowering the Council to charge an annual fee for the retention of a doctor's name on the Register, in addition to an initial fee for registration. Their scheme would require approval by the Privy Council. Although introduction of annual fees is intended to provide the Council with an assured income, it will, incidentally, enable them to reduce the initial fees payable on provisional 1164 and full registration. Anyone who failed to pay the annual retention fee could, subject to certain safeguards, be removed from the Register under the new powers. The main purpose of the remainder of Clauses 1 to 10 is to simplify the registration procedure and make consequential changes in the administration of the General Medical Council.
At this point I should also like to draw the attention of the House to the provisions of Clause 12, which substitutes I a new Section 25 for the existing section in the 1956 Medical Act. This provides that a person can obtain temporary registration only, among other conditions, ifhe is or intends to be in the United Kingdom temporarily".This provision has in the past aroused a certain amount of criticism, particularly in those few cases where it has prevented a doctor already practising in this country from continuing to practise if he or she can no longer be said to be "temporarily resident in the United Kingdom"—for example, owing to marriage to a United Kingdom resident. This limitation serves no useful purpose and prevents a few doctors who wish to do so, and who are otherwise qualified to do so, from practising in this country. Therefore, Clause 12 removes the present limitation on temporary registration being granted only to persons who are temporarily resident in this country. I may also mention, perhaps, that since temporary registration will under this clause be able to run for an indeterminate period, Clause 16 makes certain extensions in the powers of the Disciplinary Committee in relation to temporarily registered practitioners.
My Lords. I now turn to the other part of the Bill, which concerns certain changes in the General Medical Council's disciplinary powers resulting from Clauses 13 to 16. At present, when a doctor has been convicted of a criminal offence or has been found guilty of "serious professional misconduct"—which is the new formula the Bill proposes should replace the existing and somewhat archaic expression "infamous conduct in any professional respect"—the only power open to the Disciplinary Committee of the Council is to erase his name from, or, to use more common terminology, to strike him off, the Medical 1165 Register. In some cases, judgment is postponed for up to twelve months to give the doctor a chance to show that he has mended his way and is still fit to practise; but this has not been found to be an entirely satisfactory alternative. The most important change introduced by Clause 13 is the addition of suspension from the Register, subject to the same safeguards by way of appeal, as an alternative to erasure. The effect of suspension is that, though the doctor's name remains on the Register, the suspension will be recorded there while it lasts, and he will be treated as though unregistered for the period of the suspension. The Disciplinary Committee will be able to watch the progress of a suspended practitioner and, where appropriate, remove his suspension without delay. Alternatively, it can extend suspension or strike him off.
Finally, my Lords, I come to the provision I mentioned at the outset of my remarks, which is designed to close the disturbing loophole in existing legislation revealed by the recent Petro case, which I referred to in a debate in this House on March 26, when I mentioned that we were discussing this problem with the General Medical Council. The House may recall that under the existing law this doctor was able to continue to practise and to issue prescriptions for hard drugs for many months after the Disciplinary Committee had decided to strike him off the Register, while his appeal to the Judicial Committee of the Privy Council was pending. The General Medical Council's direction that his name be erased from the Register was given on May 31, 1968, but erasure was not effective until October 30—five months later. During this time he was free to continue prescribing. The harm that was done we cannot possibly know exactly, but the potential damage is indicated by the fact that in May alone he is known to have prescribed 24,000 ampoules of injectable methylamphetamine to more than 100 patients.
Clause 15 of the Bill now provides that when the Disciplinary Committee decides to erase or suspend a doctor from the Register it will also be able to suspend his registration with immediate effect rather than from the end of the appeal period or, if an appeal is lodged, from the date of its dismissal. The intention of this new power is to enable 1166 the Disciplinary Committee, whim the public interest demands, to prevent a doctor from practising during the appeal period and while an appeal is being determined, This, as the Petro case showed, can be quite a protracted process, during which serious harm can be done. This power of immediate suspension, together with the amendment in Clause 14(1) of the requirement for giving notice to a doctor of the Disciplinary Committee's decision, will, we believe and hope, effectively close this loophole. Although it is unlikely to be used frequently I am sure that noble Lords will agree that it is in the public interest that such a power should be provided in this new legislation in the light of recent events and the public concern that has been expressed.
My Lords, from what I have said the House will see that the object of the Bill is to provide some very necessary powers for stabilising the finances of the General Medical Council, and introduces some—and, in relation to the power of immediate suspension, very important—improvements in the Council's disciplinary and registration procedures. As I indicated, the General Medical Council itself agreed with the proposals of the Bill and the medical profession broadly accept them. I hope in these circumstances it will receive a welcome from all sides of your Lordships' House. I beg to move.
§ Moved, that the Bill be now read 2a.—(Baroness Scrota.)
§ 9.31 p.m.
§ LORD NEWTON
My Lords, I am sure that all who stayed to listen to the noble Baroness moving her Bill will be as grateful as I am for her explaining the highlights so clearly and, I may say, briefly. I do not think it is necessary for me to say very much because not only is the hour late but the Bill, which I certainly support, is concerned mostly with details of administration. I should like at the outset to join with the noble Baroness in the tributes which she has properly paid to the noble Lord, Lord Cohen of Birkenhead, and his colleagues on the General Medical Council.
This Bill is the latest but, I imagine, not the last of a long list of Statutes which define the conditions under which a person may practise medicine and enable those who do practise that ancient and honourable profession to regulate, 1167 control and discipline themselves. So far as I am aware, the first enactment was the Physicians Act of 1540 in the reign of Henry VIII. This Act lasted for 318 years, until 1858, when the first Medical Act was passed. Thereafter there was a spate of enactments affecting the profession, the latest being the Medical Act of 1956 which the Bill before us amends. Even that Act was largely a consolidating measure.
The Explanatory Memorandum of the Bill tells us, and the noble Baroness told us herself, that the main purpose of the Bill is to enable the General Medical Council to require an annual fee to be paid by a registered practitioner for the retention of his name on the Register. I can see that that is the main purpose; but to me, at any rate, the most important provision is the one which enables the Disciplinary Committee of the Council to suspend a doctor as an alternative to removing his name from the Register. That seems to me to be eminently sensible. I agree with the noble Baroness that it is very wise in these days, when the occasional black sheep—she mentioned one—abuses his power by prescribing hard drugs irresponsibly, that suspension may be made immediately effective although it is subject to appeal to the High Court.
As I had expected, the noble Baroness told us that the Bill meets the wishes and the agreement of the General Medical Council and is generally approved by the profession. I hope that it is, though I cannot help feeling that there may be some doctors who will regret the fact that they will have to pay an annual fee for registration instead of only one. I am sure, therefore, that the House ought to give this Bill a Second Reading. I have only one mild regret about the Bill and that is the banal phrase, "serious professional misconduct" which is substituted for the old phrase "infamous conduct in a professional respect". The older, the latter, phrase always seemed to me to have a majestic, solemn and appropriate ring about it.
§ 9.35 p.m.
§ LORD COHEN OF BIRKENHEAD
My Lords I am sure that all your Lordships would wish to share Lord Newton's expression of gratitude to the noble 1168 Baroness, Lady Serota, for her clear exposition of the provisions of this Bill, and I should like to express my warm thanks to both of them for the tributes they have paid to me and to my colleagues. I do not propose to speak at length, but there are certain matters which I think need to be filled in in relation to what the noble Baroness has said.
The main purpose of this Bill, of course, is to enable the General Medical Council to charge an annual retention fee, and your Lordships may well ask why this should be. Perhaps if I tell you that under existing arrangements it is estimated by expert independent accountants that the cumulative deficit at the end of the period 1971 will be £200,000, you may realise why the General Medical Council must seek to improve its financial arrangements. Briefly, the history is that between the first Medical Act, that of 1858, and 1950 the registration fee—there was a single initial registration fee—was £5, and it did not vary during that period. Before 1950 the Council was showing a deficit, and then came the Medical Act of 1950 which changed the method of registration and also enabled the General Medical Council to charge a provisional registration fee and a full registration fee, at first five guineas and six guineas respectively.
About that time the number of Commonwealth and foreign practitioners who registered in this country increased, and they provided a significant income for the General Medical Council which met what would otherwise have been a deficit. But shortly after that, certainly in 1962, there had been a significant decrease, for reasons into which I need not enter, when Commonwealth and foreign practitioner registrations declined. So once again the Council was significantly in deficit. The Privy Council was approached and agreed to increase the registration fees to a maximum of £9 for the provisional registration and £11 to £12 for the full registration. At first we did not charge that amount, but later we had to go to the full extent of the Privy Council's permission. From January, 1965, we have had to charge £9 and £12 respectively.
The reasons for this increased expenditure of the Council are certain common 1169 ones, such as an increase in staff and increasing salaries, arrangements for superannuation and so forth. But there have been three or four major pieces of expenditure. It has become necessary to computerise the Medical Register because no printer would retain the amount of type necessary to print it each year. It was an enormous bulk, and the printers said that this was not possible. Computerisation has cost us about £40,000. We have had to renew the lease on our premises at 44 Hallam Street, which has also cost us a large sum of money, and we have had to extend our premises to meet the increase in work. This, too, is costly.
We decided that the single initial registration fee could not possibly meet this increasing expenditure of the Council. Moreover, as the noble Baroness has said, it was clearly inequitable to put the total cost of the work of the Council on the newly qualified practitioners, at present paying £21 which might have to be increased to £30 or £40, or even more. We therefore decided to follow the practice that is followed by practically all other professional registration bodies in this country—by the dentists, the vets, the opticians, the professions supplementary to medicine—and by Medical Councils and similar bodies in the Commonwealth; that is, to charge an annual retention fee. We had to decide and here we sought expert advice—how this should be done and who among the doctors should pay. After examining various schemes the experts advised that we should charge a much smaller initial registration fee, perhaps half of our present registration fee, and that we should have a small annual retention fee. Perhaps it is unwise to state an amount, but I will chance saying "somewhere between £2 and £3". That, of course, will be a taxable expense. We should decide whether certain doctors should be exempt; otherwise all doctors on the register would be expected to pay the annual retention fee. The exemptions would include, for example, those over the age of 65, those who through ill-health had retired from practice and those who are resident overseas.
Whatever regulations we make must be approved by the Privy Council. There is that safeguard. I am glad to say that the British Medical Association have 1170 approved in principle of annual retention fees. They too would like to ensure that there are safeguards about removal from the Register of a practitioner for default of payment and also about the amount that is to be charged.
One matter with which the noble Baroness did not deal is the provision in Clause 11 which enables the Council to register additional qualifications. At present qualifications additional to a primary qualification which the Council may register are included in the Schedule 3 to the 1956 Act. This Schedule is archaic and very restrictive. The result is that we cannot register such well-deserved qualifications as membership or fellowship of the Royal College of Obstetricians and Gynæcologists, the Royal College of General Practitioners, the College of Pathologists, fellowship of the Faculty of Radiologists and many university degrees, such as a doctorate of surgery or mastership of radiology, because they are not included in the Schedule, which hamstrings the Council in its registration of additional qualifications.
What we are seeking under Clause 11 is that the Council should determine which additional qualifications are worthy of registration, so that the list will be added to from time to time, as the Council thinks appropriate. I may say that there is an inconsistency about the register of additional qualifications in the United Kingdom and Eire, inasmuch as we are already empowered to register additional qualifications granted in Commonwealth and foreign countries with which we have reciprocity. Clause 11 will put the matter right.
With regard to discipline, perhaps I should mention that one of the hampering factors will be removed by Clause 13(1) of this Bill. Hitherto, we have been able to accept as proof of a charge alleged against a practitioner a conviction in the United Kingdom or in Eire, but not a conviction in the Channel Islands or in the Isle of Man. Clause 13(1) enables us to do this.
With regard to suspension, the noble Baroness said that at the moment we have power simply to erase. It is true that since 1894 we have on occasion postponed judgment where we have found the facts proved against a practitioner in a 1171 case of misconduct or where he has been convicted of an offence. We postpone judgment in order that we may see how he behaves during the period of postponement, and we require references from professional brethren and other persons of repute at the end of that period to be given confidentially to the Council. In many ways this can prove unsatisfactory. We believe that if we have the power to suspend it will enable us to deal much more satisfactorily with certain types of case.
I might interpolate here that the power to suspend is already present in similar Acts in New South Wales, South Australia, Queensland, Victoria, New Zealand, Ontario, and South Africa. It is no new method of dealing with misconduct; and, of course, it is used in this country by the Law Society, by the Architects Registration Council, the Royal College of Veterinary Surgeons, the Central Midwives Board and the Institute of Chartered Accountants. It is interesting that in a judicial decision in 1964 their Lordships commented on the fact that we had no other form of punishment (that is the word they used) such as reprimand or suspension.
I should perhaps say that we in the Council do not regard our function as punishing a doctor. It is true that indirectly he is punished if he is prevented from carrying on his practice, but there is no element of retribution about the decisions taken by the General Medical Council. Their purpose is primarily to protect the public. They sometimes have in mind, also, that their decisions might act as a deterrent to other doctors.
We believe that in certain types of case suspension is less desirable. For example, in cases in which it is proved that a doctor is a chronic alcoholic, and that this has interfered with his conduct in practice, or that he is a drug addict, it is clearly undesirable that we should postpone judgment and hope that in the period of postponement he will improve, because he can still carry on as a registered practitioner during the period of postponed judgment. If we had the power to suspend that doctor for a period not exceeding 12 months we could make it a condition that before he reappeared at the end of his suspension he should have 1172 undergone a course of treatment; and that when he comes back to us we should be able to say that it has been shown to us that he is now fit to resume practice.
There is another type of case in which we think that suspension might be helpful (and these are simply examples), and that is the case of adultery with a patient. It is clearly a gross breach of professional privilege where a doctor enters the family, has access to a member of that family because he is a doctor, and abuses that privilege. Clearly some degree of punishment in the sense in which I have mentioned it should be meted out to him. But we find that there are in many instances very strong mitigating circumstances. We still feel that some action should be taken in such a case. For example, if we suspend him for a period of 12 months, he will have suffered loss, but he knows that at the end of 12 months he will be able to return to his practice. In other words, he can plan his future. There are of course cases of adultery with a patient—for example a doctor who commits adultery with the mother, who is a patient, for a period of, say, two years, and then, tiring of her, begins to commit adultery with the daughter, who is also a patient. Perhaps multiple adultery of that kind merits the ultimate sanction, which is that of erasure.
The noble Baroness and the noble Lord, Lord Newton, have made it clear why they support immediate suspension in certain cases. If the public is to be protected (and here again it is not only in the case of drugs; it arises also in the case of serious drunkenness or serious drug addiction), to leave the doctor on the Register for a day longer than he need be left may be injurious to the public safety. One of our difficulties in the past has been that the doctor has 28 days in which to appeal, and he remains on the Register during that period. As some of your Lordships will know, the Judicial Committee of the Privy Council does not move with undue haste, and if he decides to appeal the shortest time in which an appeal has been heard has been five months after the appeal has been lodged, and it has been as long as 11½ months. In the case of Doctor Petro it was five months, and in that case there were certain special circumstances. But he was allowed to continue his dissemination 1173 of drugs for a period of six months after the General Medical Council had directed that his name should be erased from the Register. If we have the power of immediate suspension, the erasure will become active forthwith.
Clearly, the man should have a right of appeal and, as you will see, the Bill provides that if he is registered in this country he has an appeal to the High Court of Justice; if he is registered in Scotland, the appeal is to the Court of Session; and if he is registered in Northern Ireland it is to the High Court of Justice there. I am sorry that the noble Lord, Lord Newton, is disappointed about our having changed the phrase, "infamous conduct in any professional respect". That was introduced in the 1858 Act—I think it was Section 29. "Infamy" is a very strong word; it involves perhaps a stronger degree of ill-fame than we wish to suggest. It is archaic; it is doubtless in Lord Newton's mind suitable for the declamatory rhetoric of a Burke, a Disraeli or a Gladstone. But we do not really think that it is appropriate now.
Distinguished judges have explained what is meant by the phrase. Lord Justice Lopes, as long ago as 1894, said this:If a medical man in the pursuit of his profession has done something with regard to it which will be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council, if that he shown, to say that he has been guilty of infamous conduct in a professional respect.Another eminent judge stated that the phrase means:No more than serious misconduct judged according to the rules, written and unwritten, governing the profession.The fact is that on several occasions (I think on 34 occasions in the past 15 years or so) the Disciplinary Committee has found a doctor guilty of infamous conduct, and has then proceeded to allow his name to remain on the Register. And there is surely a conflict between a finding of infamous conduct and allowing the name to remain on the Register. After all, infamy should deserve a worse fate.
The phrase "infamous conduct" has in fact been dropped by most of the professional bodies concerned with discipline, 1174 and it is for that reason that we have agreed that in the Bill the phrase "serious professional misconduct" should substituted for "infamous conduct in a professional respect". I would emphasise that this change of phrase does not in any way alter the scope of the jurisdiction of the Disciplinary Committee: it will neither enlarge nor contract that scope.
There are other proposals or provisions in the Bill which are of great importance, but they do not justify my detaining your Lordships at this late hour to discuss them further. There are a few anomalies which are removed by the Bill; there are important provisions making it a statutory right for the General Medical Council to borrow money should if have need of it; and there are provisions in relation to the recognition of qualifications of new universities which previously required an Act of Parliament but now would simply require the recommendation of the Council, to be approved by the Privy Council.
My Lords, the Bill is a very valuable Bill. It is, as it were, the first of a series of Bills which are likely to be presented to your Lordships' House dealing with medical education. I should like to express my personal and the Council's very warm gratitude to the Government for the way in which they have presented this Bill, and the very kindly support they have all given it. I am most grateful to them.
§ 9.57 p.m.
§ BARONESS SEROTA
My Lords, I am sure that the whole House would wish me to express gratitude to the noble Lord. Lord Cohen of Birkenhead, for putting the flesh on the bones of this Bill. It would indeed be presumptuous of me at this late hour to add more. I would merely thank both him and the noble Lord, Lord Newton, for their welcome to this Bill. I hope the noble Lord gets over his regrets about the change of name—I am sure he will—and I look forward to the next stages of the Bill as it makes a very rapid passage through the House, in view of the welcome it has received from all sides to-night.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.