§ 4.44 p.m.
§ Lord WELLS-PESTELL
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Wells-Pestell.)
On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MAYBRAY-KING in the Chair.]
§ Clause 1 [Constitution of the General Medical Council]:2018
Lord PITT of HAMPSTEAD moved Amendment No. 1:
Page 3, leave out line 8 and insert ("The nominated members shall be persons").
The noble Lord said: This Amendment deals with the point I raised on Second Reading relating to the lay membership of the GMC. In the Merrison Report, on which the Bill is based, the suggestion was that there should be 10 out of 98 members of the GMC nominated by the Privy Council to represent the public. That is a very small percentage. This clause dilutes it further because it says:
Of the nominated members, a majority shall be persons who are neither fully registered nor holders of any qualification registrable under the Medical Act 1956.
This means that if merely six people were nominated out of the 10, the wording of the Act will have been met.
§ Ten out of 98 is a small percentage. The vast majority of the other members will be doctors. Not only will the doctors be directly elected, but most of the universities will send their Deans of the Faculty of Medicine, and most of the Deans are probably doctors. In a couple of cases they may be scientists; occasionally a professor of chemistry or zoology might be the Dean. More often than not the Dean is also a doctor; and that means of the 98 members, 88 would be doctors. For the Government to nominate half a dozen lay folk in that gathering would not be right for the public, and it would put too big a burden on the lay nominees. The way that we could meet this is by insisting that all the persons nominated by the Privy Council should in fact be lay persons representing the public. This is the real kernel of the case that I am making. I hope the Government accept this Amendment. I beg to move.
§ Lord WELLS-PESTELL
I am grateful to my noble friend for raising this matter. Although I am unable to say that we agree with the Amendment, it gives me an opportunity of trying to clarify a situation which, on the face of things, needs clarifying. It is perfectly true that Merrison has suggested that the Council should consist of 98 members; but it by no means follows that there will be a Council of 98. This is a matter which has to be considered and the figure may be less. If it is, I can see why it does not necessarily meet my noble friend's point which many would consider is a real one.
2019 I want to say why the Government are exercised in their mind not to accept this Amendment. I hope that I shall succeed in persuading my noble friend to withdraw the Amendment for reasons I will give. The Amendment, as he said, would require that all rather than a majority of the nominated members of the Council would neither be fully registered nor hold registrable qualifications.
My noble friend Lord Pitt said on Second Reading that he thought all the nominated members should be non-medical since there would be enough doctors on the Council as elected and appointed members. That is a point he has reiterated this afternoon. The Government believe this Amendment would be a serious limitation on the flexibility of the legislation governing the General Medical Council; and it is a flexibility, if I may say so, that the Merrison Report encouraged and which this present Bill tries to enact, since it would prevent the Government—and I would ask my noble friend to consider this important point—from nominating doctors to the Council, and in particular the chief medical officers of the Health Ministries. I recognise that the Merrison Report recommended in paragraph 404 that the chief medical officers should participate on the Council only as observers, on the argument that questions concerning the setting of professional standards and the regulation of the profession had to be kept separate from questions concerning the provision of services.
We agree with that argument, but think that its application in this case is based on a misunderstanding of the role of the chief medical officers concerned. I want to emphasise that they are the chief medical advisers to the Government and, in that capacity, take a far broader view of the question of the setting of standards than the Merrison Report perhaps acknowledges. They can therefore bring great experience and professional capabilities to bear on the deliberations of the Council. I am sure I do not need to remind my noble friend Lord Pitt that it was exemplified in the recent distinguished service of Sir John Brotherston, who was then the chief medical officer at the Scottish Home and Health Department 2020 and also chairman of the General Medical Council's education committee.
We know of nothing to suggest that the presence of chief medical officers or, for that matter, their deputies, as full members of the Council has had other than a favourable influence on the setting of standards. We think that this influence would be lost if this Amendment were accepted, because it would be difficult to fit in chief medical officers, who in the past—and I think this is generally accepted by everybody—have made a very valuable contribution. It is really on these grounds that we resist the Amendment, although one appreciates the reasons why it has been put forward by my noble friend. I hope he will feel that, in asking him to withdraw the Amendment, I have given a satisfactory explanation.
§ Lord PLATT
While fully appreciating the intentions of the noble Lord, Lord Pitt, I must say that I agree with the noble Lord, Lord Wells-Pestell, that it makes it a rather inflexible rule and indeed really goes too far towards ensuring what is, of course, desirable—that there shall be non-medical members of the Council.
§ Lord PITT of HAMPSTEAD
I was going to say that in fact I anticipated the reply my noble friend would give me. But it is my view that if the Government want the chief medical officer to be an ex-officio member of the General Medical Council, there is nothing to prevent that being included in the Bill. A further clause could be added, stating that there should also be ex-officio members and they should be named, or the Government can be one of the appointing members, so that they can appoint somebody to the General Medical Council.
What I am not so happy about—and I bow to the noble Lord, Lord Platt—is the possibility that at some later date the Government will nominate, say, nearly half the members from the Health Service Departments of England, Scotland and Wales, and end up by merely having about half a dozen lay people on the General Medical Council. It is to safeguard against that that I am adopting this inflexible attitude. My view is that if the Government want to make chief medical officers ex-officio members of 2021 the General Medical Council, that should be included in the Bill.
On Question, Amendment negatived.
On Question, Whether Clause 1 shall stand part of the Bill?
§ 4.57 p.m.
§ Lord PLATT
I apologise for intervening at this early stage of the Committee proceedings. I assure your Lordships that I shall not detain you for more than a few minutes and that I have no intention of intervening in this way on the rest of the clauses of the Bill, although I hope to join in some of the arguments on Amendments.
On some of the most important matters which arise over the reconstitution of the Genera] Medical Council, this Bill gives no guidance whatsoever. That is deliberate, of course. A great many points have been left to the GMC itself to discuss, to decide and eventually to come before Parliament in the form of Orders in Council. I have no complaint about that They are, of course, subject to the Negative Resolution procedure, but we all know how difficult it would be at that stage to have any such orders annulled or amended. I therefore think we should make certain things quite clear at this stage.
Clause 1, which I suspect we are about to agree to, is all-important in that it deals with the composition of the new GMC. In particular, there are to be more elected members than appointed and nominated members put together. While I accept that that is an important principle which could be for the good, it has at least two dangers: one is that it may increase the size of the GMC to such enormous proportions as to make it almost an impotent body, and that would mean that everything is really decided by the permanent staff. The other question is: How are the members to be elected? On this, as I have said, the Bill gives us no guidanc whatsoever. The doctors will presumably be circulated with a list of candidates, almost none of whom they will know personally or will even have heard of. It leaves the door wide open for one section of the profession to canvass heavily for its own candidates which it wants to see on the GMC while ignoring all the others.
2022 I am going to be quite blunt. The only professional body which has the organisation to do that and which is able to command the necessary publicity is the British Medical Association; and it has done this in GMC elections for many years, although the elected members were then comparatively few compared with what they will be in this new set-up. I am not saying that the BMA is hoping for this, but it could mean, either now or in the future, that the British Medical Association really has control over the GMC and that the profession would be regulated by the BMA and not by the General Medical Council. In my view, this would be a disaster. In saying that, I mean no harm to the BMA which I acknowledge has, in many respects, done a great deal of good for the profession. But, in my view, it is too heavily involved in medical politics and disputes with the Government to have such overriding power put into its hands.
It is clear from paragraphs 392 to 400 of their report that the Merrison Committee recognised this danger. They suggested various safeguards, including their recommendation of the single transferable vote as the method of election, and that each candidate should be allowed to circulate a very short account of his own career and the reasons why he thought he could do good work on the GMC. Not a word of this appears in the Bill, so that, once again, I bring it to the notice of all who may study the deliberations of this House; and this seems to me to be the only way of doing so.
§ Lord WELLS-PESTELL
I do not know whether I can give the noble Lord, Lord Platt, a satisfactory answer to what he has said. As he will know only too well, the Bill sets out quite clearly who is responsible for appointing members, for nominating members and for electing members. As I understand the situation, the noble Lord is concerned about the position of the elected members and the procedure that is to be adopted.
The difficulty that one encounters in the Bill is that a good deal is left to the General Medical Council—this I accept—for them to consider the situation, to lay down procedures and, as the noble Lord rightly pointed out, to embody those procedures in an order which must come 2023 before your Lordships' House, subject to the Negative Resolution procedure. So that if there is anything in the order which is not acceptable to Members of either House, then appropriate steps can be taken.
All I can say is that I will draw my right honourable friend's attention to what the noble Lord has said. If the noble Lord feels that he has any comments about which he would like to let my right honourable friend know, then I am sure that my right honourable friend will be glad to have them, because we are just as anxious as anyone else to see that this is done correctly, in order that we can get a GMC constituted in the way that every-body wants. But I do not think that I can take the matter any further than that.
Clause 1 agreed to.
Clauses 2 to 4 agreed to.
§ 5.4 p.m.
Lord HUNT of FAWLEY moved Amendment No. 2:
After Clause 4, insert the following new clause—
§ "Function of General Council.
§ . As from the succession day it shall be a function of the General Council to give guidance to the medical profession on all matters relating to ethical conduct and behaviour."
§ The noble Lord said: Before I deal with the substance of this Amendment, I should like, with your Lordships' leave, to explain more generally my reasons for moving my 12 probing Amendments to add to the scope of this Bill. I know that my friend, the noble Lord, Lord Wells-Pestell, asked us at the Second Reading to think not twice but three times before putting down Amendments. I can assure him that I have thought deeply about this; and I have come to the conclusion that I agree with my noble friend Lord Auckland that this is clearly a measure which must have a properly-discussed Committee stage. The last five of my Amendments are very short, and should not take up much of your Lordships' time.
§ It is now more than nine years since the Todd Report on Medical Education recommended changes in the system of regulation for medical education. It is four and a half years since the General Medical Council published comprehensive 2024 proposals for changes in the arrangements for the regulation of overseas doctors. And it is more than two and a half years since the Merrison Report was published. That Committee took evidence from all interested bodies in the medical profession, including the General Medical Council, the British Medical Association, the universities and the colleges, and that report comprehensively reviewed the machinery by which the medical profession is regulated—in other words, the functions, powers and composition of the General Medical Council.
§ The Merrison Report was a very balanced document. It dealt first at considerable length with medical education and proposed a number of important alterations. Next it proposed changes in the arrangements for the registration of overseas doctors. It recommended new machinery to deal with sick doctors. It proposed, also, to give the Council a statutory duty to promote high standards of professional conduct. And, finally, it recommended a reconstitution of the Council to take account of these new functions, and to recognise the desire of the profession for an elected majority of practising doctors—a point which the noble Lord, Lord Hill, mentioned so cogently here a fortnight ago. The Bill now introduced by the Government deals with only two of these many matters—the composition of the General Medical Council and the sick doctor. The report of the Merrison Committee was unanimous, and its recommendations were widely accepted by other bodies. The noble Lord, Lord Segal, described it as a model of widsom and sound judgment. My noble friend Lord Auckland called it one of the most lucid documents of the last decade.
Five days ago, I received a letter quite out of the blue from Sir Alec Merrison himself, from Bristol University where he is vice-chancellor. He has given me permission to quote it to your Lordships and it reads:
I was pleased to hear today that you are trying to put right the extraordinarily feeble Bill the Government has put to the Lords. I write to wish you good fortune and to make one or two points which you might find helpful.
When Sir Keith Joseph asked me to chair this Committee of Inquiry he emphasised that there had been no general review of the regulation of the profession since 1858"—
119 years ago—
He was absolutely right.
Sir Alec's letter continued:
A quarter of our report was concerned with medical education. This was for the simple reason that, important though it is to remove the dangerous doctor from the Register, it is far more important to make the generality of good doctors better. Although every doctor is put on the Register, so he must be the best kind of doctor you can make, very few need to be struck off.
The twin premises of our recommendations on education were that it is now acknowledged in legislation as elsewhere, that a doctor cannot today practise independently without a postgraduate education, and that his education both pre- and post-graduation must be looked upon as a whole. Both these premises lead directly to the conclusion that the GMC must exercise supervision over postgraduate education.
§ The Secretary of State for Social Services said on 18th July, in a Written Answer in another place, that the Government accepted in principle the clear consensus of opinion within the profession, that the Merrison recommendations should be generally accepted; that the General Medical Council should be given responsibility for co-ordinating all stages of medical education; and that the Merrison proposals on altering the legislative arrangements which govern the registration in this country of doctors with overseas qualifications should be accepted in principle, too.
§ Two weeks ago, the noble Lord, Lord Wells-Pestell, told us that the main purpose of this Bill is to make provision for the reconstruction of the General Medical Council and for some expansion of its functions, ft played a central role, he said, in maintaining high professional standards in this country. The present Bill aimed at consolidating that and at making it easier to carry out. He added that the role of the General Medical Council's Education Committee was one of the areas in which the Merrison recommendations were broadly accepted in all quarters and which were seen as suitable for early legislation. He stressed that the medical profession was particularly anxious to see the early implementation of these recommendations.
I have been encouraged to put forward my Amendments by Sir Alec Merrison, by the General Medical Council which, with its President (Sir John Richardson) supports them strongly, and by the Secretary of the British Medical Association (Dr. Elston Grey-Turner) who wrote to me eight days ago as follows:
The fact that the Government had at long last decided to make a start on implementation of the Merrison Committee recommendations—and particularly on those relating to the reconstitution of the GMC—was welcomed by the Council Executive at its meeting last week, but it was the general opinion that the Bill did not go far enough and that attempts should be made to enlarge its scope to include some of the other Merrison recommendations … We greatly appreciate the help you have given us on this question and, as you know, we believe the proposals to enlarge the Bill to give effect to the Merrison recommendations regarding (i) the registration of overseas-trained doctors and (ii) the promotion of high professional standards would be unlikely to meet opposition either among the profession or in the GMC.
I am sure that we are all working towards the same ends. We want the same thing. The mystery lies in what my noble friend Lord Sandys has described as the Government's "apparent timidity." Why is it that less than half of what the Merrison Report recommended, and what so many of us want, is incoprorated in this Bill? The Government say it is because full agreement has not yet been reached within the medical profession on certain educational matters, and because of legal difficulties. They are quite right. My profession is largely to blame. Many people within and outside the Government must think it extraordinary that after three years and more of discussion and consultation we have been unable to reach agreement, even among ourselves or with our lawyers, on several important points.
§ The Government hope to put another Bill before us within what was referred to a fortnight ago as "the not too distant future", "in a reasonable time", or "at the first available opportunity". I do not for a moment question the Government's sincerity over this, but I do not think that, whatever Government are in power, anyone on either side of this House can really believe in his heart of hearts that, with an overfull legislative programme and time in short supply, the chances of getting a second Bill on to the Statute Book within three years are other than very slim indeed. That is at the bottom of my unhappiness about the limitations of this Bill. If I had thought that we had a good chance of introducing the second Bill next year, I should not have worried nearly so much.
The noble Lord, Lord Wells-Pestell, said here a fortnight ago that the Medical Bill was,
mainly an enabling measure … It is also a
flexible measure … allowing future amendments to the constitution to be made by Order in Council rather than by primary legislation".
Many people have asked me why this Bill cannot be expanded as an enabling measure to cover the principles of the other things that we want. As the noble Lord, Lord Segal, pointed out, when any of it is on the Statute Book there will still be many problems to be solved. That cannot be avoided when one is trying to cater for and satisfy a great number of different groups of people within one huge profession. If any mistakes are made in subordinate legislation, we know that they can be corrected, or revoked, or subject to annulment by a Negative Resolution procedure in pursuance of a Resolution of either House of Parliament.
§ To keep all educational matters for a second Bill would perhaps be a neat and tidy legislative way of doing things, but there are several points about the GMC's duties concerning undergraduate medical education over which there is no disagreement. It is with these that some of my Amendments on education, and the experience required for full registration, are concerned. To keep them all for a second Bill might keep the new and enlarged General Medical Council, with perhaps 98 members, kicking its heels with relatively little to do for a long time. Let us put as much as we possibly can into this Bill to allow the new General Medical Council to get busy as soon as possible. We want as much of Merrison in this Bill as we can get. If we are not allowed all of it, three-quarters of it now will be better than less than half.
Now, I should like to turn to my first Amendment, Amendment No. 2—the Function of the General Council. The purpose of this Amendment is to give effect to two recommendations in the Merrison Report. Paragraph 268 of that report recommended
the issue by the GMC of fuller guidance on professional misconduct than has been issued in the past. Guidance is helpful not only because it sets out what conduct is likely to lead to proceedings, but also because it helps to define the general nature of professional misconduct. Furthermore the issue of guidance would reduce confusion about the GMC's work in this field; entitle the GMC to point out to a doctor that he should have been aware that particular action is regarded as misconduct, and provide a focus for debate of what is misconduct".
Further, paragraph 358 of the report said,
when any new medical legislation is drafted we recommend that the GMC should be placed under a statutory duty to promote high standards of professional conduct so as to leave no doubt of its standing to act in this field".
In justification of this recommendation the report commented on the enormously increased power which science has put in the hands of doctors, the complexity of issues of professional conduct which doctors now face and the number of sources at present providing advice on medical ethics in clinical situations. There are many of these—the BMA, the universities and so on. The report continued as follows:
We do not believe that the present situation is satisfactory. In today's society the doctor is confronted by highly complex and technical problems that did not arise for his predecessors, and he accordingly needs a better channel of advice. We think this need can best be met by the GMC assuming an active role. We are far from believing that everyone else at present concerned with medical ethics should then shut up shop: indeed we believe it is vital that discussion of the problems to which we have referred should take place as widely, as continuously, and under as many auspices, as possible. Nor are we so naive as to believe that the GMC could ever hope to dictate rules for doctors. What we believe the GMC can and should do is to be the centre of public debate, explaining—to the public as much as to the profession—advising, and, if need be, warning".
§ The Committee may wonder why the function referred to in this Amendment has not always been a statutory function of the Council. The statutory functions of the Council in relation to professional conduct essentially date from 1858 and, at present, are limited to dealing in a disciplinary sense with conduct on the part of a doctor which is so grave as to amount to serious professional misconduct or, to use the phrase which appeared in the Medical Acts until 1969, to infamous conduct in a professional respect and which may merit suspension or erasure from the register. The General Medical Council has found this to impose an undesirable limitation on its powers, because not only does the Statute give the GMC no authority to offer advice on what constitutes good professional conduct but also a doctor who, perhaps through ignorance, exhibits a poor standard of conduct, though not so bad as to come within the definition of serious professional misconduct, may take the line that his behaviour is none of the Council's business.2029
§ The new clause does not of course extend the disciplinary powers of the Council in any way. There are precedents for a function such as is proposed in this clause in the legislation relating to the General Dental Council, the General Optical Council and some other professional boards. It would place beyond doubt the Council's right and indeed duty to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour. But, as Merrison contemplated, it is not intended that this new function of the Council should in any way supplant existing sources of advice to doctors. The BMA has produced a book on this subject; so has the General Medical Council and so have others. It is intended that this new function should simply establish the Council's standing in this field as the central body to give guidance to the medical profession on all matters relating to ethical conduct and behaviour.
§ The General Medical Council supports this Amendment and it is understood that the British Medical Association also supports it. If the Amendment is accepted by your Lordships it will be necessary to amend the Long Title of the Bill by inserting in line I after the word "constitution" the words "and functions". I beg to move.
§ 5.22 p.m.
§ Lord SANDYS
I should like to support my noble friend Lord Hunt of Fawley in this Amendment. I think he was quite right in his prologue to the Amendment as such, to set out his reasons for the whole series of Amendments which he has on the Marshalled List. It has helped to set them in the context of Merrison as a whole. As the noble Lord has rightly pointed out to your Lordships, this is a major Amendment because it could conceivably impinge upon the Title of the Bill, and therefore Amendment No. 16 is linked with it. I think it would be for the benefit of the Committee if I did not further quote Merrison at length. My noble friend has made a very substantial argument, and therefore we look forward to further contributions.
§ Lord GARDINER
It is probably most unwise of a layman to express any opinion on a matter of this kind, but in a few words supporting the Amendment I 2030 should just like to say that I have always felt very sorry for doctors. For some years I was chairman of the Professional Conduct Committee of the Bar Council. Any Member of the Bar, young or old, can go to the Professional Conduct Committee and ask what his duty is in certain events and ask them to give him a ruling, and they are bound to do so. If there is not going to be a meeting in time before he has to take some action, the chairman is bound to give him a ruling and, although it is only the Benchers of the Inns of Courts who can take disciplinary action against a barrister, there is no known case where they have ever taken any disciplinary proceedings against a barrister who has done something which the Professional Conduct Committee told him to do.
I understand that the situation has always been very different for doctors. As I understand it, if they go and ask the British Medical Association, they are told "This is not a matter for us, it is a matter for the GMC". If they ask the GMC, they are told, "We are not here to give advice. If you do something we shall strike you off, but we are not here to tell you whether you can or cannot". I remember a doctor client of mine, an ear, nose and throat specialist, who became very interested in plastic surgery and cosmetic surgery and who felt that in many cases for women, in particular, who had been born with some unhappy feature, it really altered their whole lives. Being an enthusiast, he wrote a book about it, and with his patients' permission he included photographs "before" and "after". If he had asked the BMA whether that might be advertising they would have said, "We cannot tell you; you must ask the GMC". If he had asked the GMC, they would have said, as I understand it, "It is not for us to give advice". In fact he published the book and was struck off. So I have always felt that in relation, for example, to the Bar, doctors are in a very unhappy position.
Difficult questions can arise in all professions, sometimes very suddenly. I remember on one occasion when I was chairman a young man coming out of court at lunchtime. He was acting against somebody who had been his client many years before in a matter which had no relation whatever to the case he was in. Suddenly, and quite unexpectedly, it 2031 turned out that the earlier proceedings might be relevant and he wanted to know during the lunch interval whether he ought to return his brief; should he tell the judge and, if so, should he ask to see him in his private room or should he do it in court. I remember a young man who had advised a widow whose very rich husband had cut her out of his will altogether, so that she was prima facie entitled to a grant under the Family Inheritance Act, and he advised that it was a good case and she would get a grant, he thought, between £X and £Y. Proceedings had to be started by a certain date. After the date had expired he received instructions to settle a written statement of claim, so he had to advise his client that he was very sorry but it was no use now. What he wanted to know was this: was it his duty to his client to say in the Opinion that, although in the events which had happened she had now no good claim, she had a perfectly good claim against her solicitors for damages for negligence?
In every profession there are difficult cases of one kind and another where one may not know what is the right thing to do. I have always felt that it is a great thing for every barrister, whether young or old, however simple or difficult the point may be, that he can always obtain authoritative guidance. I am afraid that has been absent in general in the medical profession.
§ 5.27 p.m.
I am sympathetic to the noble Lord, Lord Hunt of Fawley, in his desire to extend the scope of this Bill and to see implemented more of the recommendations in the Merrison Report. At the same time, however, I accepted the argument which was put so powerfully by the noble Lord, Lord Wells-Pestell, at Second Reading, to the effect that we must not delay the Bill but must get it on the Statute Book. I was also inclined to accept his clear undertaking (as I thought) to see to it that further legislation was introduced fairly soon to deal with other matters. But I sympathise with the noble Lord, Lord Hunt of Fawley, in his desire to extend the scope of the Bill.
However, I am bound to say that in regard to this Amendment I have certain 2032 reservations. It seems to me that to insert this clause in this way amounts almost to an open invitation to the General Medical Council to "jump the gun" on a number of decisions on matters which perhaps it might be better were decided elsewhere. With the greatest possible respect to the noble and learned Lord, Lord Gardiner, I do not think the parallel between the Bar Council and the GMC is—
§ Lord STONE
I should like to ask the noble Lord where one should go for the intermediary location which should be there to stop a direct appeal to, possibly, the General Medical Council, and who is there to advise accordingly? From the legal point of view one understands that the noble and learned Lord could have a solicitor attend to this matter and to advise as to how to proceed. From a medical point of view, is the person who is concerned in such a position that someone can report him? Who is that someone? And is there a means of approaching the GMC or whoever is concerned directly?
If the noble Lord will allow me I will deal with those points as I come to them. Of course it is important that doctors, like everyone else, should have sources of advice and help in what can be very difficult situations. But I was trying to say to your Lordships that in my opinion the Bar Council and the GMC are not parallel, they are almost perpendicular. With respect, the Bar Council is a professional organisation which is wholly under professional control, whereas the GMC (established, I believe, under the Medical Act 1858) was established primarily to exercise public functions rather than purely professional functions.
I think the noble and learned Lord said that, if doctors ask the BMA for advice on matters of this kind, they say, "This is nothing to do with us; it is a matter for the GMC". With respect that is not the case. Doctors seeks advice from the BMA almost daily, and the Ethical Committee of the BMA constantly give advice to doctors in very difficult situations. To quote one example, to do with doctors appearing on television, the use of the name and the circumstances under which regular appearances on television could be taken as advertising 2033 in a professional respect: the BMA gave detailed advice in general to doctors on that matter, and they gave specific advice to individual doctors whenever they sought that advice. So I think it is fair to say that there are opportunities for advice.
It may be that there should be others. But I am not entirely sure that it is the business of the GMC to do this, because in respect of disciplinary matters, it seems to me that very often the GMC is acting on matters which are already decided by the courts. There are many matters which arise which are controversial and difficult and in regard to which doctors may have to exercise their minds and decide how to behave, but which are sometimes not decided. I am not at all sure that all these matters should be decided by the GMC. If I may give an example, take the case of Dr. Alec Bourne and abortion many years ago. He tested the law by carrying out a procedure and testing it in the courts. Following the decision taken in the courts, the GMC itself interpreted the law differently in relation to other acts or complaints which were parallel and related to that.
Presently we shall perhaps be faced with questions about euthanasia. I am not at all sure that the GMC is the body which should decide what should be the law relating to that matter. We have been waiting for many years for debates on the report of the Brodrick Committee on death certification, the whole question of the decision of the moment of death, particularly in relation to the taking of human organs or tissue for transplantation purposes. It is a matter of immense importance which will have to be finally and clearly decided in due course, but I think it will have to be decided by Parliament and by the courts and not necessarily just by the GMC.
I sympathise with the motives behind this Amendment. I think that doctors need guidance, but I am not at all sure that it would be wise to insert into this Bill what amounts to an invitation to the GMC to take decisions on a variety of matters which are perhaps not already decided, and which perhaps ought to be decided in other places.
Baroness WARD of NORTH TYNESIDE
I should like to add my support to my noble friend's Amendment. In 2034 the many years in which I have been in public life, in one place and another, have never had any experience in local government, and I have never had any real experience in any professional organisation. But I have learned over these 38 years that when a matter of this importance is expressly stated in such admirable terms as in the Amendment that was moved by my noble friend Lord Hunt of Fawley—I always used this technique in another place and I hope I may be allowed to use it in your Lordships' House—it is quite important that as much support as can be gathered from individual Members should be put on the record. I am not going to do more than say that I accept the wide experience and the tremendous support which my noble friend has had from very knowledgeable and very highly respected bodies. I accept the point about the timetable, which is a very important problem, but I think it very necessary to start in the way that my noble friend suggested. Therefore, I am delighted to support his Amendment, and I hope the noble Lord who is going to reply will feel the same way as I do. I therefore beg to support the Amendment.
§ 5.36 p.m.
§ Lord WELLS-PESTELL
I am in some difficulty, and I think I must be perfectly frank with your Lordships. The first part of the noble Lord's speech in moving this Amendment was in fact not related to the Amendment at all; it was, if he will not mind my saying so, a Second Reading speech, which was out of order. I do not want to fall into the trap of replying to that, because then I, too, would be out of order. What I want to say is that at Second Reading I made it perfectly clear on behalf of the Government that this was a limited Bill seeking to do one or two things, the main one being to bring about facilities whereby the General Medical Council could be reconstituted and perhaps more representative. Most of the legislation so far as this Bill is concerned is directed towards that end.
The noble Lord complained up to a point about the timelag, but he was honest enough to say that the profession itself is far from being in complete agreement on some of these matters, and on a lot of the matters which are not before your Lordships today and will not be 2035 before your Lordships until we have a second Bill. One can only hope that the profession itself, as well as the other bodies we have to consult, will by that time have a real measure of agreement among themselves.
The noble Lord, Lord Hunt, said that it looked as if the second Bill would not appear for about the next three years. The thought horrifies me: it horrifies the Government. The Government do not want to wait three years; they do not want to wait two years. But it does not depend entirely upon the Government. It depends on all the bodies that have to be consulted, not least among them the medical profession, seeing whether there can be some unanimity among them. So let me say here and now that there will be no delay so far as the Government are concerned in introducing a second Bill, but it does not rest entirely upon the Government.
The next thing I want to say, before replying to the Amendment, is this. I think I ought to say this—not because I want to limit discussion; I have no power to do that and your Lordships would take me to task if I attempted to do that, but I think your Lordships ought to know that since the Second Reading the noble Lord, Lord Hunt, and I have met on a number of occasions and we have had a number of telephone calls. There is a very real measure of agreement between us on all his Amendments. I think I can say—and he can correct me if I am wrong—that we have come to a very real working arrangement as far as these Amendments are concerned. Some of them we shall accept in principle. Others will be withdrawn; I think that is the intention of the noble Lord. I think I ought to mention this because since Second Reading I have re-read the whole of the speeches made then, so have my advisers, and we really have, as T think Lord Hunt will agree, made a sincere and sustained effort to meet him on all matters which he has raised in his Amendments. I mention this because perhaps I could ask the noble Lord to indicate, at the end of each Amendment he moves, what he is prepared to do in the light of what the Government are prepared to do.
So far as this Amendment, No. 2, is concerned, the Government accept in 2036 principle what is intended by the Amendment. However, obviously the Government seek the advice of Parliamentary Counsel. We have been told that the present wording is really not sufficient, not explicit enough and does not define what it really intends—if we know the intention. For example, it talks about:give guidance to the medical profession on all matters".What does "all matters" mean? Does it mean that the General Medical Council will be able to give advice on all matters, for example relating to the private lives of doctors if they go wrong? That aspect must be examined.
I think that the noble Lord, Lord Hunt of Fawley, accepts that it is drafted too widely. I should like to ask him whether he would be good enough to withdraw the Amendment in the light of the several discussions that we have had, on my undertaking that we shall get Parliamentary draftsmen to look into this. I would say in relation to this Amendment, as I shall say at the appropriate time in relation to various other Amendments, that if this course is followed then I should be very happy to show him the wording which, after legal advice, we think is the suitable wording, in order to get his observations and views. If he accepts, we would be very happy for the noble Lord himself to put down the Amendment in his name rather than follow the usual pattern whereby the Government do it in their name. The noble Lord, Lord Hunt of Fawley, has done most of the work. However, as I have said, there is no disagreement in principle. It is the drafting which we think is too wide and we ask him to withdraw the Amendment on that understanding.
§ Lord HUNT of FAWLEY
In view of what the noble Lord, Lord Wells-Pestell has said, I am very happy indeed to withdraw this Amendment subject to the help of Parliamentary Counsel and Parliamentary draftsmen. I am grateful to the noble Lord, Lord Wells-Pestell, for his suggestion that I should see the Amendment which they produce before the Report stage. I thank the noble Lord.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
On Question, whether Clause 6 shall stand part of the Bill:
§ Clause 6 [Professional misconduct and criminal offences.]:
§ 5.43 p.m.
§ Lord SANDYS
Clause 6 affects professional misconduct and criminal offences. It is a particular area where legal advice has been taken by the profession, and I understand from the British Medical Association that it is still not entirely happy with the drafting of this clause. The Association is in some difficulty here and therefore we have not put down an Amendment which deals with its particular problem. However, I should like to mention the background so that the noble Lord, Lord Wells-Pestell, can have some advance notice should we wish to put down an Amendment at the Report stage. Clause 6(1) says:the Committee may, if they think fit, direct—(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests.Those last four words, "or in his interests" are the words which worry the British Medical Association. It arises in this way. Professional misconduct and that whole area naturally will concern the Committee which deals with such matters. However, the new Health Committee which is being set up under the Bill had no remit in 1969. The 1969 Act coupled together the questions mentioned in the particular clause to which I am referring. If it be that those words "or in his interests" are incorrectly placed in Clause 6(1), we shall return to it. Those same words are repeated in Clause 7 which deals with unfitness to practise through illness. In that respect the British Medical Association feels that those words are entirely correctly placed in that clause.
However, once again under Clause 8 where power to order immediate suspension after a finding of professional misconduct or unfitness to practise is mentioned, there appears to be a duplication or carry-over from the 1969 Act. These are areas on which legal advice is currently being taken and we may wish to return to them at a later stage.
§ Lord WELLS-PESTELL
I am grateful to the noble Lord, Lord Sandys. I wonder whether he would allow me to look at Hansard tomorrow so that I can study what he has said in detail and whether he would wish me to take advice also from our legal department, and write to him on this matter—I will try to do it quickly—giving him the Government's view?
§ Lord SANDYS
I would be very much obliged. I think that it would reduce the amount of communications if the noble Lord, Lord Wells-Pestell, was willing to do so with the assistance of the Department. I am most grateful.
Clause 6 agreed to.
Clauses 7 to 14 agreed to.
§ 5.46 p.m.
Lord HUNT of FAWLEY moved Amendment No. 3:
After Clause 14, to insert the following new clause—
§ "Duty of Education Committee.
§ ( .—(1) As from the succession day it shall be the duty of the Education Committee—
- (a) to promote high standards of medical education and, subject to the provisions of the Medical Acts to co-ordinate all stages of medical education; and
- (b) to determine the standard of proficiency to be required from candidates at a qualifying examination and the extent of the knowledge and skill which shall be regarded as sufficient for the granting of a primary qualification.
§ The noble Lord said: This Amendment and the next Amendment are designed to implement recommendations in Chapter 2 of the Merrison Report. That chapter deals with education and registration. Among other things, it proposes reforms in the statutory provisions governing undergraduate medical education, most of which date from 1886 or earlier, and improvements in the statutory provisions governing the pre-registration year—that is, the compulsory year of resident appointments in hospitals which comes between qualification and the granting of full registration to a newly-qualified doctor. Most of the recommendations made by Merrison in this area had been made some 2039 seven years earlier in the Report of the Royal Commission on Medical Education—the Todd Report.
§ Both the Merrison Report and the Todd Report emphasised the need to view and to regulate medical education as a whole; and to remove artificial barriers between the undergraduate medical education given to medical students, in medical schools, and the compulsory year of hospital appointments which follows graduation, usually known as the pre-registration year. Merrison called it "graduate training".
§ Clause 14(4) of the Bill which is before your Lordships transfers to the education committee the present educational functions of the GMC. At present these are mainly concerned with maintaining a sufficient minimum standard on qualification. Merrison took the view that to perform this function efficiently the GMC must also have some responsibility for the regulation of the later stages, and be made responsible for promoting high standards of medical education as distinct from minimum standards. This recommendation occurs in paragraph 67 and again in paragraph 70 of the Merrison Report. The first part of the new Clause 1(a) is designed to effect this.
The second part of this clause, giving the education committee the duty:
subject to the provisions of the Medical Acts to co-ordinate all stages of medical education
is designed to implement the recommendation in Paragraph 70 of the Merrison Report, that:
the charging of the GMC with a general duty to promote high educational standards complements our recommendation, that the GMC ought to co-ordinate the planning of all stages of medical education".
The wording of the proposed Amendment includes the phrase:
subject to the provisions of the medical Acts
in order to make it clear that the coordination extends no further in terms of actual powers than the powers elsewhere conferred upon the Council.
§ The proposed subsection (1)(b) of the new clause is designed to make flexible the standard of proficiency and the extent of the knowledge and skill to be required from medical students at graduation. I can best give the reasons for this Amendment 2040 by reading to noble Lords part of paragraph 66 of the Merrison Report.
At present there is a statutory definition, in section 10(1) of the Medical Act 1956, of the aim of undergraduate education:
'The standard of proficiency required from candidates at a qualifying examination shall be such as sufficiently to guarantee the possession of the knowledge and skill requisite for the efficient practice of medicine, surgery and midwifery'.
The GMC, in evidence to us, made the following comment:
'[This Provision] no longer accords with the facts of contemporary medical practice, and with the passage of time [has] become an obstacle to the re-formulation of the undergraduate medical curriculum in the light of contemporary needs. Nowadays it is unrealistic to suppose that any medical student, at the termination of the undergraduate curriculum, can possess the knowledge and skill requisite for the efficient practice of medicine, surgery and midwifery. It is only after a considerable period of postgraduate training and experience that doctors are regarded as competent to practise without supervision surgery, midwifery or one of the other branches of medicine …
On that Merrison commented that:
We agree with this view, and consider that the present definition on the one hand leads to the crammed undergraduate course and on the other fails to recognise the need for every doctor to have received specialist education.
To meet these points subsection (1)(b) of the new clause provides that it shall be the duty of the Education Committee:
to determine the standard of proficiency to be required
on qualification. This would, in effect, replace the provisions of Sections 10(1) of the Medical Act 1956, which I have already quoted. When we reach Schedule 6 to the Bill I shall propose the repeal of that section. This Amendment would make the Education Committee responsible for determining the standard of proficiency to be required at qualification, just as the GMC is at present responsible for applying and interpreting the obsolete standard—the noble Lord, Lord Segal, described it as archaic—which is at present embedded in the Acts. Under the Bill the Education Committee will inherit the powers of the present Council, which have hardly ever been invoked—to report to the Privy Council any medical school or examining body whose standards it regards as insufficient; so that the Privy Council may, if it thinks fit, then
declare that the examinations of that body shall no longer amount to qualifying examinations.
§ The third matter covered by this Amendment is set out in the proposed new subsection (2) and involves the deletion of six words in Section 9 of the Medical Act 1956. This section relates to the appointment by the GMC of visitors of medical schools. Strangely, the present legislation provides that visitors of medical schools may not be members of the General Medical Council, although the legislation does not stop the General Medical Council from appointing its members as visitors or inspectors at examinations. It is clear that the GMC thinks that it would often be useful for it to be able to appoint some of its own members—perhaps one or two—as visitors. Such visitors would have first-hand knowledge of the views of the Council on medical education and, as members, would also be able to report more effectively to the Council upon circumstances which are found to exist in medical schools. The Merrison Report in paragraph 83 commended the development of a more informal system of visitation, which this Amendment would facilitate.
§ All the foregoing Amendments have the support of the General Medical Council. I believe that they will also be welcome to the universities and medical schools. If your Lordships accept these Amendments, I shall later move certain minor and consequential Amendments by the addition of certain references to Schedules 5 and 6 to the Bill. I beg to move Amendment No. 3.
§ Lord SANDYS
I should like to support my noble friend Lord Hunt of Fawley in his Amendment. Some of our difficulties in this Bill, as in other Bills, are due to over-consolidation. Your Lordships are aware that this whole area of legislation has over a century behind it and the first Act of 1858, followed by others—in particular the Act of 1886—brought about the need in 1956 for the Consolidation Act. My noble friend is attempting, quite rightly, to make variations to Section 10(1) of the Medical Act 1956, to which he has referred. The problem is one of rigidity in that Act. When the Joint Committee on Consolidation produced its work which led to the 2042 1956 Act, all the former rigidities of many Acts were added into one. They were not amended; they were consolidated.
This area is one of many exceptionally difficult areas of legislation. I do not know an area more difficult because, of course, during the last century and a quarter the advance of the medical profession has simply been enormous. So the pure consolidation of the Acts of Parliament would have been unsatisfactory, to say the least. Nevertheless, from a legislative point of view—and in this area I am a novice—I should like to quote what the Renton Committee has said about it because it certainly strikes a chord with me. It is to be found in Cmnd. 6053. That Committee quotes a former Sovereign, King Edward VI, in the 16th century when he said:I would wish that … the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them.To that I think we might all say: "Hear, Hear!". But the difficulty is one of the advance of medical knowledge and medical education in this particular field. I am quite sure that my noble friend Lord Hunt of Fawley is perfectly correct in bringing forward an enabling Amendment in this manner.
§ 5.58 p.m.
§ Lord WELLS-PESTELL
This is another Amendment which I have discussed in some detail with the noble Lord, Lord Hunt of Fawley. He is aware of the fact that the Government accept this Amendment in principle, but, having taken advice, I must say that we have to look at it from the point of view of wording. Since this Amendment was first tabled, the noble Lord, Lord Hunt of Fawley, has substituted the word, "succession" for the word, "appointed", as he did in his first Amendment. That substitution does not make sense in this context as in the wording of the Bill the membership of the education committee is chosen by the General Medical Council and, therefore, it cannot in practical terms be set up until after the succession day. There is, therefore, no point in giving this committee these new duties on the succession day. We will, however, instruct Parliamentary Counsel that it should be given these new powers as soon as it is set up; that is, on the appointed day 2043 for the education committee. The other change in the wording of this Amendment is the substitution of the words "The Medical Acts" for "this Act"; this is a technical point, but at first glance it seems sensible to us.
Subsection (1) (a) gives the education committee a duty to promote high standards of medical education and to co-ordinate all stages of medical education. Both of these new duties were recommended in the Merrison Report and it had been the Government's intention to consider them in the second stage of their implementation of the report. Our only reservation about subsection (1) (b) is that as it is at present worded it would not allow for dropping the qualifying examination which may be considered desirable, if initially only on an experimental basis. At Report stage we should be prepared to amend this in the spirit of the noble Lord's Amendment.
May I just pass on to subsection (2). It is a minor Amendment which will allow anyone appointed by the General Medical Council, whether or not he is a member of the Council, to visit medical schools. At present members of the Council are expressly excluded from being appointed to visit medical schools and, under the Bill as now drafted, members of the education committee but not members of the Council who are not members of the education committee are excluded from being so appointed. Under this Amendment there would be no restriction of this kind on any member of the Council. This is something we shall have to look at. As I have already said to the noble Lord, we accept this in principle, and if he is willing to withdraw this Amendment we shall endeavour to redraft the Amendment along the lines he has indicated—which of course I shall show him before the Report stage.
§ Lord HUNT of FAWLEY
I am grateful to the Government for their interest in this Amendment, and am very happy to withdraw it, on the understanding that the noble Lord, Lord Wells-Pestell, and the Parliamentary Counsel and draftsman, will reword it in the way they think right.
Amendment, by leave, withdrawn.
§ 6.2 p.m.
Lord HUNT of FAWLEY moved Amendment No. 4:
Insert the following new clause—
§ "Experience required for full registration.
§ "(3) A person who has been employed as aforesaid may apply to his Examining Body for a certificate under this section, and if, but only if, that Body are satisfied—
- (a) that during the time he has been employed as aforesaid he has been engaged for the prescribed period or minimum period in medicine and for the prescribed period or minimum period in surgery, and
- (b) that he has held two or more posts which together have afforded him such experience as in the opinion of the Examining Body is suitable and sufficient for the purposes of this section, and
- (c) that his service while so employed has been satisfactory,
§ (4) (a) The Education Committee shall determine the nature of the experience which is to be regarded as suitable and sufficient for the purposes of this section.
§ (b) The Education Committee may, if it thinks fit, appoint persons to visit any hospital which has been approved for the purposes of this section and to report on the suitability of any post in that hospital which has been so recognised.
§ (c) If in the opinion of the Education Committee any hospital has been approved or post recognised which is unsuitable for the purposes of this section, or any Certificate of Experience has been granted in respect of employment which in the opinion of the Education Committee affords unsuitable or insufficient experience, the Committee shall convey its opinion to the Examining Body or Bodies concerned, and those Bodies shall take account of such opinion when considering whether to issue certificates under subsection (3) above".").
§ The noble Lord said: I beg to move Amendment No. 4. I move this Amendment because I believe that it will help to improve the educational value of the experience obtained by a young doctor after qualification and during his pre-registration year. This has in the past given rise to a good deal of justified criticism. Many of the shortcomings have arisen from the lack of power for the universities or the GMC to improve matters; and the Merrison Report made a number of suggestions to put this right.2045
§ This clause deals with the experience required by a newly-qualified doctor before he gets full registration—in other words, the pre-registration service which he, or she, must perform in hospital as a resident house officer after graduation and before full registration. This is at present governed by Sections 15 to 17 of the Medical Act 1956. The new clause makes certain Amendments in subsections (3) and (4) of Section 15.
§ The Amendment to subsection (3) does not repeal any of the present provisions of subsection (3) but it extends their effect in two ways. In order to become entitled to full registration a young doctor must produce a certificate of experience. The section as it now stands provides that a person, after completing the pre-registration year, may go to a university or licensing body for a certificate of experience and requires the university to grant him a certificate of experience if the doctor has been employed satisfactorily for the prescribed periods in medicine and in surgery. These periods are prescribed by the General Medical Council and are six months in medicine and six months in surgery, making 12 months in all.
§ The clause amends subsection (3) by making it clear that the university or examining body is to grant a certificate of experience if, but only if, it is satisfied not only that the doctor has been employed for the prescribed periods, but that in the course of this employment two or more posts have been held which together have afforded such experience as, in the opinion of the examining body, is suitable and sufficient for the purposes of the section. Both the Todd Report and the Merrison Report have recommended the strengthening of the powers of universities in order that the pre-registration year may afford a better educational experience.
§ These Amendments will not, of course, produce that result in themselves—that also depends upon there being available sufficient posts of the right nature. The Amendment would, however, strengthen the hand of a university in guiding its young graduates into a suitable combination of posts by enabling a university to withhold a certificate of experience in those rare cases where it was not satisfied that the graduate had held two suitable and sufficient posts.2046
§ The Amendments made to Section 15(4) serve several purposes. Section 15(4) at present provides that one of the posts held during the pre-registration year may have been in midwifery. The Todd Report endorsed the GMC's view that midwifery is not a suitable discipline for this stage of a doctor's training: training in midwifery should come later and after full registration. All medical students, of course, get a certain amount of training in midwifery before they qualify. The first effect of inserting this new subsection would, therefore, be to remove the present statutory option of a period in midwifery during the pre-registration phase. This option in fact is now rarely exercised because very few posts in midwifery are recognised for the purpose. Less than 10, I am told, out of more than 3,000 recognised training posts are at present in midwifery.
§ But the new clause also implements the recommendations in the Merrison Report that the Education Committee of the GMC should be given a formal power, which at present the GMC lacks, to determine the nature of the experience which is to be regarded as suitable and sufficient during the pre-registration year. The Merrison Report recommended that the GMC should have a formal power to visit hospitals and posts which have been approved for this purpose so that, if questions arise as to the suitability of particular hospitals or posts, they can if necessary be determined by the GMC.
§ Sub-paragraph (c) of the subsection then provides that, in this event, the Education Committee shall convey its opinion to the Examining Body or bodies concerned, and that those bodies shall take account of such opinion. Under the present legislation it is the universities which are responsible for approving hospitals and recognising posts for pre-registration service and for granting certificates of experience. The Amendment would not remove this responsibility from universities; but it would enable the Council's education committee to give official advice to a university concerning the approval of the hospital, the recognition of a post, or concerning the giving of a certificate of experience based on unsuitable or insufficient experience. As I have already said, these three Amendments are designed to give effect to 2047 recommendations in the Merrison Report. They have the support of the GMC, and I understand that they would be generally acceptable to the universities and medical schools. I beg to move.
§ 6.8 p.m.
§ Lord WELLS-PESTELL
This is another Amendment which the noble Lord, Lord Hunt of Fawley, and I have discussed. This is one which the Government accept in principle, but again the wording is such that we have to let Parliamentary Counsel look at it. In fact, Parliamentary Counsel is doing so—I will not say at this precise moment—and I have known about these Amendments for some days. We are dealing with this. If the noble Lord feels able to withdraw this—as I say, we agree in principle—we shall see what we can do to make it acceptable from a legal point of view. I give him the undertaking that I gave him on the others, that I shall certainly let him see it and we can discuss it, and if the noble Lord is so disposed he can put it down for Report.
Before I sit down, may I say that I hope that the Committee will feel that I am acting quite properly in saying what I am going to say—of course it is subject to anything that the noble Lord, Lord Hunt, wants to say—that the next four Amendments, Amendments Nos. 5, 6, 7 and 8, concern matters dealing with a complex situation. They deal with the registration of doctors, the limited registration of overseas doctors, and with the progress from limited registration to full registration. I have pointed out to the noble Lord that these will be matters which the Government cannot contemplate including in this Bill, which will have to be included in the next Bill. If the noble Lord accepts that, then I wonder whether he would feel justified in withdrawing this and Amendments Nos. 5, 6, 7 and 8 as, from the Government's point of view, no useful purpose would be served in proceeding with them?
Before the noble Lord, Lord Hunt of Fawley, replies to the Minister, it might not be inappropriate if I said a word about pre-registration posts, and in doing so I wish to draw the attention of noble Lords to another aspect of the whole question of pre-registration posts 2048 which may be causing some anxiety to young doctors or medical students who are not yet qualified. I say at once that I welcome the Amendment and I am glad to hear the response it has received; I am therefore in no way criticising the Amendment.
Perhaps we should not forget the history of pre-registration posts. It is of course entirely true that medical practice becomes more and more complex as the years go by so that an ordinary qualification, received when one has sat one's qualifying examination, cannot really be regarded as a licence to practise any kind of discipline in any kind of place in any kind of way. Thus, restrictions had to be imposed, and that I accept entirely; there was a need to make absolutely sure that young doctors had training additional to that provided in their ordinary medical school or university, and the best possible place for that training was, of course, in occupying what are called pre-registration posts in hospitals. These were house posts as house surgeons, house physicians and so on where they were working alongside their colleagues and medical teachers and where they were acquiring greater knowledge and experience.
However, it is not altogether a coincidence that the move to make pre-registration posts compulsory arose at about the time when, because of the extremely poor pay of house jobs in hospitals, it was getting harder all the time to get doctors to take those posts. This applied in particular, I regret to say, to the teaching hospitals. When I qualified, the pay of a house surgeon at Manchester Royal Infirmary was 10s. 6d. a week. It is true that in certain municipal hospitals the pay was much higher and I have a letter written by members of the medical establishment, deans of medical schools and others, to the medical superintendents of a number of municipal hospitals asking them to reduce the pay of house surgeons because at that time they were not able to recruit house surgeons to take the posts in teaching hospitals.
That is history, and I am not for a moment saying that we have slave labour, with pre-registration posts, though they are posts which young doctors must take in order ultimately to get their full licence to practise. And therefore I say that, along with this Amendment and all the 2049 provisions that we make for improving pre-registration posts, perhaps placing more restrictions on young doctors to ensure that they are fully and adequately trained, we must at the same time remember that we have a real duty to protect the interests of those who will have to take these posts, because, once one removes market forces from the whole question of the recruitment of labour, one gets into a situation where difficulties can arise. I simply remind noble Lords that difficulties did arise and that they could arise again if we are not vigilant. I support the Amendment but I believe that, in supporting it, and before proceeding further with pre-registration posts, we must keep our eyes well open and watch for the interests of those who are controlled by laws such as this.
§ Lord PLATT
Before we leave the Amendment I would say, because I was a member of the Royal Commission on Medical Education, how much I support the noble Lord, Lord Hunt of Fawley, in his proposals. They are in accordance with what the Royal Commission was thinging at that time. I understand the noble Lord's Amendments fully but I also fully understand the Government's reply to them. I should like that to be understood.
§ Lord HUNT of FAWLEY
I was about to mention to my four Amendments Nos. 5, 6, 7 and 8, to which the noble Lord, Lord Wells-Pestell, referred.
§ Lord WELLS-PESTELL
I am sure that the Committee would like to know at this stage whether the noble Lord intends to withdraw the Amendment which is at present before the Committee.
§ Lord HUNT of FAWLEY
Yes; but I have a brief comment to make about it first. I know that the Government are adamant about these Amendments; they will not accept them because of various legal and other complications. I was rather hoping to put to the Committee the arguments in favour and against some of them; but it will save a great deal of time if I do not do so, though I know that Lord Wells-Pestell will enlarge on these legal problems later. I put them forward as probing Amendments and I do not intend to press them. I hope that some of the difficulties may be ironed out and 2050 that it may be possible, perhaps on Report, to introduce one or two clauses about the registration of overseas-qualified doctors. In the meantime, I am happy to withdraw the Amendment.
Amendment, by leave, withdrawn.
§ 6.17 p.m.
Lord WINSTANLEY: I beg to move Amendment No. 9:
Before Clause 15, insert the following new clause—
§ Retention Fee.
§ (".Nothing in this Act shall result in any increase in the annual retention fee payable by doctors included in the Medical Register.")
The noble Lord said: As will be clear from the wording, this is a probing Amendment; in other words, it is not my intention to press it. I merely seek to elicit some response from the Government on a matter of great importance, a matter about which I am sure the Government will have to make a statement sooner or later. Further, I seek to initiate a discussion at this early stage on a matter which may prove to be the most contentious of all the matters which could arise from the Merrison Report as time goes on; namely, the financing of the newly structured and enlarged General Medical Council. Indeed, the Merrison Report, having gone into some detail about the finances of the GMC—stating that there were three ways of paying for it; wholly by the Government, wholly by the profession, or in part by each on some sort of partnership basis—went on to analyse some of the arguments and finally concluded on page 151:
We hope that a discussion will be opened on this matter".
My purpose is to open that discussion and I am sure that there are noble Lords present who will have something to say on the subject.
§ One must be utterly clear about what is the function of the General Medical Council. On an earlier Amendment we had a brief discussion about the role of the Bar Council, but it must, I believe, be accepted that the GMC is now a body which exercises a largely public function. It is there for the necessary and proper protection of the public; to ensure that registered medical practitioners have been properly trained, educated and tested and to ensure that they maintain certain 2051 standards of practice. Of course it has professional involvements as well; it serves many purposes so far as the medical profession is concerned. But now that the majority of doctors work in the National Health Service, the doctors themselves tend to feel that, so far as supervision is concerned, they are effectively supervised by bodies like the area health boards, regional hospital boards, family practitioner committees and the various bodies within the NHS which see to it that doctors keep the rules.
§ It is clear that the newly formed General Medical Council, which will be of much greater size, will cost a great deal more. Indeed, the noble Lord, Lord Wells-Pestell, said as much on Second Reading and also said that the servicing of a much larger committee would require much more finance. From where is this finance to come? At present the bulk of the money comes from what is called the retention fee which doctors pay annually to remain on the register. Doctors who qualified a long time ago paid what they thought was a once and for all payment to go on the medical register. Indeed, some of those elderly doctors—perhaps I am one of them—complained that this was a breach of the Trade Descriptions Act. Having paid a once-for-all registration fee they were then later asked to pay a retention fee.
§ The noble Lord, Lord Wells-Pestell, in his Second Reading speech referred to the introduction of the annual retention fee and to all trouble which arose there-from. A very large number of doctors objected strongly. I think he said "some doctors", but in fact there were very many doctors who initially refused to pay it. Of course pressure was applied on them and finally, as the noble Lord, Lord Wells-Pestell, said, the argument about who was to pay for the General Medical Council gave rise to the undertaking given by the Government to set up the Medicine Committee to look into the whole structure and function of the General Medical Council. It was on the introduction of that undertaking that those doctors—and I was one of them—finally paid the retention fee, and it has been paid each year. We shall go on paying each year. But by how much is it to go up? I understand that there is an argument 2052 here, and I hope we shall hear that argument in your Lordships' House.
§ Many doctors feel that the GMC ought to be a professional organisation. It will remain wholly under professional control if the profession finances it, but I do not believe that that is realistic. It is not wholly under professional control; it is under the control of Parliament and the Statutes which set it up, and it is there primarily to exercise a public function. If that is the case, then the public should pay a substantial part of the cost. How is it to be done? I do not know. The noble Lord, Lord Pitt, referred to this on Second Reading, and there was a suggestion that the Government might make some grant. Indeed, the noble Lord, Lord Wells-Pestell, did not say that that was impossible, although he did not go so far as to say that it would happen. He did not commit the Treasury in any way, but said that that was the kind of thing which had to be looked at.
§ I hope that we can now have a first look at this. This is the area in which there is most trouble lying ahead. If, as I guess, the net result of the increased cost is that suddenly doctors are going to have to pay a retention fee of something like £50 a year—a grossly enlarged retention fee—there will be many arguments, and many doctors will say once again, "We will not pay it". It is possible that I might be one of them, but I shall wait to hear what are the arguments. I beg to move the new clause.
§ Lord SEGAL
When my noble friend Lord Wells-Pestell comes to reply, perhaps he will make it quite clear that this item of the retention fee is deductible from every practice as part of the expenses.
§ Lord PITT of HAMPSTEAD
We may be able to deduct it in terms of income tax but that would take up a very small part of it. If you are paying £50 a year and out of that £50 you are allowed to deduct income tax—£15 or something like that—that does not compensate you at all. I hope my noble friend the Minister will not take that line. What the noble Lord, Lord Winstanley, said is true. The General Medical Council exists to protect the public, and it would be wrong to ask the profession to foot the whole Bill for maintaining a Council whose job it is to 2053 protect the public. The public as represented by the Government, the taxpayer, should make some contribution towards it. I am not suggesting that the profession should not make a reasonable contribution, but I feel quite strongly that the profession should pay part of the cost of running the General Medical Council and the State should pay a certain part. I am not going to say what proportion each should pay. I am not prepared to suggest that because I can show on my income tax form the sum of £50 which I have paid as one of the expenses of my practice. It may be suggested that that is good enough. It is not.
§ 6.25 p.m.
§ Lord WELLS-PESTELL
Of all the Amendments before your Lordships' House, I feel on this one as if I am in a kind of no-man's land filled with mines and tripwires. The experience I had of getting out of minefields was many years ago and I am sure I have lost my skill in doing so. But let us try to look dispassionately at the situation This new clause stipulates that any increased expenditure on the part of the General Medical Council which arises from implementing the provisions of this Bill is not to be met from an increase in doctor's annual retention fees. At the moment the General Medical Council derives all its income from doctors' fees, some coming from retention fees and the rest from initial registration fees and the charges which it makes for any tests which it administers. The Government feel that the new clause would be unworkable, that it would not be possible to calculate the increased cost to which the Bill will give rise given annually increasing administrative costs, or to work out the additional expenditure which will be incurred by the new enlarged Council, and the three committees concerned with fitness to practise which it will have in place of the present two.
I do not know whether this new clause is designed to try to commit the Government to making a contribution to the finances of the General Medical Council. However, as it stands, the wording would not do this, but would leave it open to the General Medical Council to raise the extra money by any means other than increasing the annual fee—that is, by increasing the initial registration fee or through fund-raising activities.
2054 The question of the Government's contribution to the finances of the General Medical Council was mentioned on Second Reading, and I pointed out that this raised a very important question of principle; namely, the independence of the statutory body which regulates the medical profession. I do not know, and the Government do not know, whether the General Medical Council would want this. It is by no means clear that a Government contribution to the fees of the General Medical Council, which might be seen as threatening its independence, would be universally welcomed, nor can we commit the Government to such a contribution. Our advice is that the Government do not need specific power in legislation to make such a contribution to the General Medical Council, and that might meet the noble Lord's point. Precedent suggests that if the Government decided to contribute they would have to specify clearly the size of the contribution in the annual Estimates which are approved by Parliament when it formally votes money from the Exchequer by way of the Annual Appropriation Act. If at any time in the future the Government decide that they wish to contribute to the finances of the General Medical Council, they are free to do so.
At this stage, I should have thought that this is a matter that ought to be left for discussion with the bodies concerned. I hope that the noble Lord will feel that this is a reasonable line to take and that it is not necessary at this stage to press this Amendment.
§ Lord. PITT of HAMPSTEAD
I do not want to be mischievous, but I recall that, when we were talking about the appointment of lay members to the General Medical Council, the Government were quite adamant in saying that they needed to appoint the Chief Medical Officer to the GMC, or, at least, that they needed to be free to do so. They did not regard the appointment of the Chief Medical Officer to the GMC as undermining its independence. But as soon as the suggestion is that they should make a contribution to the costs of running the GMC, the question arises as to whether making that contribution would undermine the independence of the GMC. That is not very logical.
§ Lord WELLS-PESTELL
I should have thought it was perfectly logical. We are talking about two entirely different things. I am saying that, so far as financing the General Medical Council is concerned, this is a matter which the GMC itself might not want because it might feel that it would affect its independence. I am saying that this is what the GMC might or might not feel. The appointment of Chief Medical Officers to the GMC would be for one purpose and one purpose only, and that is that they have a peculiar and special contribution to make to the deliberations of the GMC.
Now that I have initiated what one might call the first instalment of what I am quite sure is going to be a lengthy and, perhaps, sometimes acrimonious discussion, I am well satisfied. At least I have been told by the noble Lord what is possible. We shall just have to wait and see what happens. Before I conclude, however, I must say that this is going to be a matter which will come back to your Lordships' House and to another place, because it is going to be a matter which will be one of public controversy, and certainly of controversy within the medical profession. So I am content to have raised it; and, with that and the noble Lord's remarks, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clauses 15 and 16 agreed to.
§ Clause 17 [Short title, citation, commencement and extent]:
§ 6.33 p.m.
§ The noble Lord said: I do not propose to detain the Committee more than a couple of minutes. Clause 17 describes the Short Title of this Bill, and perhaps it is unusual for any Government to find themselves in the position of being criticised for a Short Title which is too short. However, the intention of this Amendment is perfectly clear, and I have no need to elaborate it. I regard it as necessary for the benefit of both professional men and laymen that no doubt 2056 should remain in anyone's mind about the purpose of this Bill. As so many Members of your Lordships' House emphasised on Second Reading, this is a very limited Bill, and deals exclusively with the reorganisation of the General Medical Council. To attach to such a limited Bill the glorified title of "Medical Bill", with all its wider connotations and implications, is to me both unnecessary and confusing. I would ask my noble friend to give us valid and cogent reasons why this Committee should persist in describing this attenuated but extremely important measure by such an all-embracing but totally misleading Title. I beg to move.
§ Lord WELLS-PESTELL
The Government are not happy with this Amendment, and, briefly, I will say why in the hope that my reasons will satisfy my noble friend Lord Segal. As he quite rightly pointed out, the Amendment is intended to change the name of this Bill, when enacted, to the General Medical Council Act; and, if I remember rightly, this was a point which my noble friend made on Second Reading.
The contents of this Bill—and I think we must keep this in the forefront of our minds—go far wider than the inner workings of the General Medical Council. They give the Council the means to the wider end of regulating the medical profession. Although Clauses 1, 2 and 3 deal with the constitution of the General Medical Council, Clause 4 deals with the 1927 Agreement with the Republic of Ireland, which is concerned with the free movement of doctors between our two countries. Clauses 5 to 13 deal with professional conduct and fitness to practise, giving the General Medical Council powers to act in relation to sick doctors and professional misconduct. They are thereby concerned with the regulation of the profession, as is Clause 14, which gives the Council's education committee powers in relation to medical education; and the remaining clauses are supplementary. We feel that, because the Bill does not involve merely the General Medical Council but involves also the universities and education—and I imagine that it also involves the Royal Colleges—it really would not be suitable if, after enactment, it were to be known as the General Medical Council Act. In the 2057 circumstances, we feel that the Short Title "Medical Bill" which would become "Medical Act", is more appropriate.
§ Lord SEGAL
I should like to thank my noble friend Lord Wells-Pestell for explaining the wider implications of this Bill and pointing out some of the other bodies which are necessarily involved. This is, of course, perfectly obviously a probing Amendment; and I am quite satisfied wish my noble friend's explanation. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
§ 6.36 p.m.
Lord GARDINER moved Amendment No. 11:
Page 18, line 27, after ("day") insert ("(not being later than one year after this Act shall have received the Royal Assent)").
§ The noble and learned Lord said: This is a probing Amendment. Your Lordships may remember that quite recently we have had more than one short discussion in your Lordships' House about the decreasing powers of Parliament and the increasing powers of the Executive. One of the ways in which this has happened is the increasing tendency of the Executive to insert into Bills a clause providing that the Bill, when an Act, is not to come into force until the Minister makes an order. We discussed this, for example, in relation to the Bail Act, which I think we all thought was urgent because of grave overcrowding in prisons and of the fact that, if unconvicted and innocent people were being unnecessarily remanded in custody instead of being given bail, obviously that ought to be stopped, and soon.
§ That was in 1976. Within about a fortnight it will be 1978. There is not a single section of that Act which has been brought into force because of the usual clause, which is becoming more usual, saying that the Act is to be brought into force by an order to be made by the Minister, who may appoint different dates for different parts of the Act. There is an increasing tendency for this to happen; and I am very glad to see my noble friend Lord Harris here, because I rather think he has an urgent Theft Bill which contains exactly the same clause, saying that it is 2058 not to come into force until the Minister says so. Then, we have the case of that particular section of the Road Traffic Act which, a couple of years ago, was inserted by an Amendment carried against the Government, and which has never been brought into force by the Minister.
§ Here, of course, there may be a very good reason for this provision. I am not at all an expert in this field; but there is, I understand, drafting to be done. It may be that this will take three months, or perhaps six months, or possibly nine months, or conceivably a year; so the limit of a year which I am suggesting is intended to be helpful. When I put this point before, in the presence of my noble and learned friend then on the Woolsack, as to whether or not some form of proceedings could be taken to make Ministers bring into force Acts which had received the Royal Assent, he said, of course quite rightly, "It is entirely Parliament's own fault; they ought not to let these clauses go through but should insist that there must be a limit Nobody wants to be unreasonable if there has to be drafting and so on; and this may be an exceptional case.
§ I am not even quite clear from what heard whether the position is that perhaps this Act is not to come into force at all until what has been called the second Act comes into force. I do not know; but I would hope that my noble friend would be able to give the Committee some indication of when he thinks that this Bill, after receiving the Royal Assent, will be able to come into force. As a matter of general principle, I think that, if what I have said is right, we ought now not to let this clause just go through, or it becomes a habit. Naturally, all Ministers prefer it. It gives them much more power; it makes matters easier for them. If there have to be rules—and, equally, it happens in the Lord Chancellor's Office—as long as this clause is there, the staff say, "We are not in a hurry to draft these. It cannot come into force until our Minister makes an order. So there is no hurry." This, I venture to think, is not a good thing. I beg to move.
§ 6.41 p.m.
I should like to support the noble and learned Lord on this Amendment. I wish to support the 2059 general principle that he has just enunciated, which is an important one, but also I should like to support him with regard to this Bill. I accepted the undertaking given by the noble Lord, Lord Wells-Pestell, on Second Reading, that all possible haste would be taken with regard to the oustanding matters contained in the Merrison Report—and there are some matters which cannot wait for very long; in particular, I underline the recommendations with regard to overseas doctors. They are very urgent and some other matters are urgent; but I cannot see how we can have those urgently if there is to be much delay and dallying with bringing this Bill into force.
I am sure that a period of 12 months is adequate. If it is too long, so be it. Nothing is lost. But I think that there is everything to be gained by making sure that all possible haste is taken in getting this Bill, when it becomes an Act, on to the Statute Book, so that we can proceed further on the very many urgent matters oustanding and which, in part, depend on it and which cannot proceed until the Act is in full operation. For many of them, we will need the full co-operation of the newly-constituted General Medical Council. Any delay in the implementation of this Act will inevitably mean delay in the other matters which the noble Lord has already accepted are urgent.
§ 6.43 p.m.
§ Lord WELLS-PESTELL
I sense that the Committee has a good deal of sympathy with what my noble and learned friend has said. He is quite right to point out what has happened in respect of other Bills in the past. We are not unmindful of the fact that there is often considerable delay between the passing of an Act and its implementation. But I would ask the Committee, and in particular my noble and learned friend, to consider what is involved here. There is the size of the new General Medical Council which has to be determined as well as the respective sizes of the different groups of members: those elected, appointed and nominated. There has to be an electoral scheme which will have to be drawn up and approved by the Privy Council; there has to be an order which will have to be made designating the 2060 appointing bodies and determining which of them can choose more than one member and which should choose jointly with another body. An order will have to be made dealing with the necessary incidental and consequential transitional and supplemental provisions which are thought to be necessary, including one terminating the office of existing members of the Council. There is an enormous amount of work to be done.
I can only say that it is the determination of the Government that no time should be lost in doing all this; but I think that, if I put it honestly and bluntly, we do not want our hands tied. It is as simple as that. I do not think that I can put it more frankly. I can give my noble and learned friend the assurance that we are not going to let much grass grow under our feet. We realise that there is a good deal of urgency. As the noble Lord, Lord Winstanley, has said, we must get one out of the way before we can introduce the other. But to some extent, the work can proceed on the second Bill while the arrangements are being made to implement the first Bill.
I would say to my noble and learned friend that I hope I have given him a satisfactory answer and the assurance that the Government themselves feel just as strongly about getting this on to the Statute Book for a whole variety of reasons. That being the case, I hope that he will feel that he has aired this matter and will probably remind us from time to time, as in the past, as to how much progress is being made.
§ Lord GARDINER
Before asking leave to withdraw the Amendment, may I ask my noble friend whether, if I return to this at Report stage with au Amendment of two years, he would accept that?—the principle being that either Parliament decides the limit or the Minister does.
§ Lord WELLS-PESTELL
Of course we would consider it, coining not only from my noble and learned friend but from any Member of the Committee. I should certainly like to take this back to my Department and draw attention to what my noble and learned friend has said tonight.
§ Lord GARDINER
I am much obliged. I beg leave to withdraw the Amendment.
2061 Amendment, by leave, withdrawn.
Clause 17 agreed to.
Schedules 1 to 4 agreed to.
§ Schedule 5 [Minor and consequential amendments of enactments]:
§ 6.47 p.m.
§ Lord HUNT of FAWLEY had given Notice of his intention to move Amendments Nos. 12, 13 and 14:
§ Page 30, line 38, at end insert ("and in subsection (3) for the words "specified in subsection (1) of this section" there shall be substituted the words "determined by the Education Committee for the purposes of section (Duty of Education Committee) (1)(b)".")
§ Page 31, line 21, at end insert ("and for the words such as to secure the possession by persons obtaining the qualification of the requisite knowledge and skill for the efficient practice of their profession" there shall be substituted the word " sufficient".")
Schedule 6, page 35, column 3, leave out line 7 and insert—
(" Section 10(1).
In section 11(1) the words "in medicine, surgery and midwifery".
In section 13(2) the words "in medicine, surgery and midwifery or in any of those subjects or any branch thereof".")
§ The noble Lord said: The next three Amendments, Nos. 12, 13 and 14 are consequential on what has already been discussed and I do not propose to move them. On Amendment No. 14, however, I should like to say a few words. Section 10 (7) of the Medical Act empowers the Council to pay its inspectors for the work they do. I am advised that this section was included in Schedule 6 by a misunderstanding, since there is no reason to think that the future Council will not wish to pay any inspector which it appoints for this purpose.
§ Schedule 5 agreed to.
§ Schedule 6 [Repeals]:
§ [Amendment 14 not moved.]
§ Lord HUNT of FAWLEY moved Amendment No. 15:
Page 35, column 3, line 31, at end insert—
("In section 18(1) the words "in medicine, surgery and midwifery".")
§ The noble Lord said: I beg to move Amendment No. 15. This Amendment serves, in relation to the Medical Act 1969, a similar purpose as the others. It removes, in a section making provisions in respect of qualifying examinations of new universities, certain restrictive words similar to those in the Medical Act 1956 which Amendment No. 14 sought to remove.
§ Lord WELLS-PESTELL
The Government wanted to look at Amendments Nos. 12, 13 and 14. The noble Lord has not moved them. I wonder whether the noble Lord would feel disposed to withdraw Amendment No. 15. I will give him an undertaking that we will look at Amendments Nos. 12 to 15 and I will report to him, as I will on the other one.
§ Lord HUNT of FAWLEY
Certainly. I beg leave to withdraw Amendment No. 15.
Amendment, by leave, withdrawn.
§ In the Title:
Lord HUNT of FAWLEY moved Amendment No. 16:
Line 1, after ("constitution") insert ("and functions").
§ The noble Lord said: This Amendment to the Long Title is consequential upon the change in the functions of the General Medical Council which the Committee accepted as Amendment No. 2, allowing the Council the new function of giving guidance to the medical profession on ethical conduct and behaviour. I beg to move.
§ Lord WELLS-PESTELL
As we are looking at Amendment No. 2 which the noble Lord moved—and I said I would come back to him on that—it is necessary to look at No. 16. This we will do. I will let the noble Lord have our views and observations at the same time as we discuss the other matters that he has been good enough to allow us to look into.
§ Lord HUNT of FAWLEY
I am happy to withdraw that Amendment on those conditions. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
§ House resumed: Bill reported without Amendment.