HL Deb 22 May 1995 vol 564 cc892-9

9.18 p.m.

Baroness Gardner of Parkes

My Lords, I beg to move that this Bill be now read a second time. I am pleased to be able today to sponsor the National Health Service (Amendment) Bill, brought from another place for Second Reading.

This is a worthwhile measure, as I shall go on to explain. It seeks to reform the constitution of an important body, the National Health Service Tribunal, and to provide it with an important power which it does not now have.

The Bill contains a number of measures designed to ensure that the NHS Tribunal, a quasi-judicial body which operates within the domain of the family health services, is able to carry out its work as efficiently as possible. Noble Lords may find it helpful if I explain at this point a little about the tribunal and the way it works. Many of your Lordships will know that practitioners who provide family health services—GPs, dentists, pharmacists and opticians—are not employees of the National Health Service; rather they are independent contractors bound by terms of service within the NHS—contracts in laymen's terms. Those contracts do not allow for practitioners to be removed from practice by the authorities which hold their contracts, even where their conduct or the way they practise gives cause for grave concern.

However, there is a body which can disqualify such practitioners from providing family health services, and that is the NHS Tribunal. If a family health services authority believes that a practitioner's behaviour or the way he practises is prejudicial to the provision of services in its area, it can ask the NHS Tribunal to disqualify that person from practice by directing that his or her name be removed from the appropriate family health services authority list of practitioners who are contracted to provide the service. If, after holding an inquiry, the tribunal considers the health authority's concern to be well founded it can do just that—disqualify the practitioner. The doctor, dentist, pharmacist or optician concerned may not then return to practice until the tribunal or the Secretary of State for Health has removed the disqualification.

I must stress that those procedures are quite separate from the procedures used by the regulatory bodies for the professions—the General Medical Council, the General Dental Council, the General Ophthalmic Council and the Royal Pharmaceutical Society of Great Britain. The tribunal exists to enable the NHS to protect the standards of service it provides while the regulatory bodies are quite rightly concerned with professional standards.

So the tribunal is an important body which performs an important function. Noble Lords may wonder why the National Health Service (Amendment) Bill is needed if the tribunal already has the power to disqualify practitioners. I shall explain. The Bill contains other clauses designed to increase the membership of the tribunal and to bring rights of appeal against its decisions into line with those applying to other tribunals. However, the clause I am about to describe—Clause 2—forms the central purpose of the Bill, and I shall concentrate on that.

The Bill is needed because no matter how much a practitioner's conduct causes concern for the safety of patients, whether because of a dangerous practice or a cavalier attitude, the tribunal cannot act immediately to protect patients. Before making a ruling on the representations made by a health authority it must first review all the evidence placed before it. There will usually be an oral hearing at which both parties—the health authority and the practitioner concerned—are represented by counsel. Noble Lords will appreciate that all of that cannot be done in a moment. It takes time to process such evidence and to arrange a hearing. Although the tribunal works as speedily as possible it usually takes between three and six months for a case to be dealt with, and during that time patients may continue to be at risk.

The National Health Service (Amendment) Bill addresses that problem by seeking to provide the tribunal with the power to suspend a practitioner immediately where it is asked to do so by a health authority in order to protect patients. That gives time for the tribunal to consider fully the allegations made against him or her without the danger to patients continuing.

In saying that, I do not wish to create a false impression. In this country we are fortunate in enjoying a very high standard of service from the primary care professions. As a member of one of those professions I know with what seriousness the great majority of practitioners approach their work and the responsibility they feel towards their patients. Dangerously careless and incompetent practitioners are rare, but serious lapses in professional behaviour do occur. Few and far between as they are, it is unacceptable for even one practitioner to expose patients to risk and for the National Health Service not to be able to protect those patients.

Situations have arisen in the past few years where practitioners' conduct has forced health authorities to seek to have them removed from their lists. The Bill was brought to the other place by Mr. John Austin-Walker, the Member for Woolwich. I should like to congratulate him on persuading the Government of the importance of the issue. He had a special interest in the subject because a problem existed whereby many of his constituents were ill served, even endangered, by a neglectful doctor who used every possible ploy to delay proceedings against him for an inordinate length of time. I recall from my own dental service committee days a dentist who dragged out proceedings for almost three years, continuing to destroy patients' mouths throughout that time. That was a rare case, but it was one too many. It was frustrating for those hearing that man's case to know that we were powerless to stop him.

In the case referred to by Mr. John Austin-Walker, the family health services authority was powerless to protect the patient and the GP was callously careless and indifferent. Under these new provisions the authority would be able to suspend him immediately from practising and then investigate further as to whether or not that was right.

Reference has been made to both the professional regulatory body and the National Health Service Tribunal. However, in that case neither was able to act immediately. The case to which I referred involved a doctor, but I have encountered other examples in the dental field because that is the profession of which I am a member. It is now some time since I sat on dental service cases. However, I was also a member of the disciplinary committee of the General Dental Council.

If the National Health Service Tribunal had been able to suspend the practitioner involved, the patient's safety would not have been at risk during the time until the practitioner was finally disqualified from practice.

I can assure your Lordships that the power to suspend is intended to be a reserve power, to be used only in extreme circumstances where a practitioner's standard of service falls very short of that which patients and the National Health Service are entitled to expect. As a professional, I welcome the existence of such a power and I am sure that the majority of my colleagues would support me, as would other professionals. Practitioners who take a pride in the service that they provide are as anxious as the general public that those few who wear their professional responsibilities lightly should be dealt with appropriately. Passing the Bill will make a great difference. The new power will be rarely used but nonetheless will be very effective.

Your Lordships will wish to know that the Bill also makes a provision enabling the NHS to ensure that a practitioner whom the tribunal disqualifies is unable to take on work as a locum, or an assistant, or a deputy to another practitioner, or for a health authority. That can occur at present. I remember very clearly dentists who were disqualified immediately working under another dentist. The disqualified dentist still met all the expenses and ran the place, but had some young fellow with his plate up "fronting" for him. That was a terrible practice, and nothing could be done about it at the time. Although that could occur at present, I do not believe that it would be usual. However, that is a good aspect of the Bill and a provision which is much needed. It is highly dangerous and very undesirable for someone disqualified to get round the disqualification by such a method.

As your Lordships can see, the Bill contains the provision allowing arrangements to be made for practitioners to continue to receive NHS payments until there has been a final ruling. I believe that such a provision is in line with employment law. Nothing, of course, will have been proved when suspension is directed, so NHS payments should continue. I am sure everyone agrees that that is fair.

The other clauses relate to the constitution of the tribunal. They aim to provide deputy chairmen and a greater pool of members so that business can be conducted as speedily as possible. As I said, the tribunal already does an excellent job but its chairman and members are busy people. Being able to draw upon a larger number will be helpful.

I believe that this is an important Bill which will bring in highly desirable legislation designed to confer on the National Health Service the ability to protect the services that it provides. I commend the Bill.

Moved, That the Bill be now read a second time.—(Baroness Gardner of Parkes.)

Lord Carter

My Lords, I congratulate the noble Baroness, Lady Gardner, on bringing the Bill to the House and explaining it so clearly, and thus I can be brief in responding. As she said, the Bill was taken through the other place by my honourable friend Mr. Austin-Walker, Member for Woolwich. I am sure that it will pass through this House with equal facility.

The Bill is technical but extremely important to those concerned. Any procedure which is devised for dealing with misconduct or incompetence has to balance natural justice for practitioners against the need to protect patients. In my submission, the Bill seems to get the balance about right.

There are a couple of points which perhaps either the Minister or the noble Baroness could answer. As I understand it, the General Medical Council or the General Dental Council can only act over serious misconduct by practitioners. What would happen with what one might describe as less serious misconduct or incompetence? I imagine that the Bill will help on that point. It seems to give much needed flexibility in matters of suspension and disqualification, as clearly explained by the noble Baroness. The provisions are also in line with employment law when dealing with the payment of practitioners who have been suspended.

As I understand it, the grounds of appeal are fairly wide. I believe that appeals from the tribunal will only be on a point of law. Probably the grounds are wide enough; if there were maladministration by the tribunal presumably it could be appealed against on procedural irregularity. I know that the Government support the Bill. I understand the ending of the anomaly by removing the unrestricted right of appeal, but when the Minister replies, could she say whether that removal has narrowed the ground by restricting appeals from the tribunal merely to points of law?

With those few comparatively small and technical questions, I believe that it is a good Bill and from this side of the House we shall do all we can to help its progress.

9.32 p.m.

Baroness Robson of Kiddington

My Lords, I also wish to thank the noble Baroness, Lady Gardner of Parkes, for introducing the Bill. Like the noble Lord, Lord Carter, from these Benches we very much welcome it and particularly the introduction of the interim suspension of practitioners until the tribunal has come to a final conclusion. From personal experience, I have been aware of the problems that can arise when, as the noble Baroness explained, a general practitioner prevaricates. He may think of every conceivable way of delaying the tribunal's decision and that constitutes a great danger to the public.

I do not wish to speak for long because the Bill is, in my view, non-controversial. I should like to ask either the noble Baroness or the Minister whether the Bill will in any way make it easier for the ordinary citizen to lodge a complaint against a general practitioner. I have had two personal experiences of trying to lodge complaints against a general practitioner and found it almost impossible. It was the same general practitioner in both cases and he was an alcoholic. He was the family doctor of my gardener and his wife; she was desperately ill and pregnant at the time. The general practitioner came to see her and completely neglected to diagnose the problem. He said: "You are just pregnant, you are probably having a miscarriage and ought to stay in bed". He came to see her two days running and she became more and more ill. I was so anxious that I got my own doctor to see her, much against his better judgment because he should not interfere in another doctor's case. My doctor took one look at her, rang for the ambulance and she went to hospital with very bad peritonitis. If I had not called my doctor, she would have died.

The same GP made a similar mistake with a young farm worker. He took the young man off the sick list because he said that he was just prevaricating, so the poor boy went back to work feeling awful. He was working on a harvester and fell off the platform unconscious because he felt so ill. I took him to hospital—he was suffering from rheumatic fever.

I relate these stories only because I then set about trying to get that practitioner investigated. At that time I came up against the problem that, in order to be able to lodge a complaint, I had to have another general practitioner, or two, to corroborate my statement. That is sometimes very difficult. The local general practitioners knew each other. They felt sorry for the man, and they knew his family. I can understand such reluctance, but it makes it impossible for the average citizen. I therefore hope that this Bill will make it easier for people who find themselves in the situation in which I found myself to get their complaints through to the right authorities. I very much welcome the Bill, and wish it an easy passage through this House.

9.35 p.m.

Baroness Cumberlege

My Lords, it is my pleasure to follow my noble friend Lady Gardner of Parkes, whose distinguished career as a practitioner, vice-chairman of a regional health authority and now the chairman of a very well-known and respected London teaching hospital, among other things, suits her admirably to the task of introducing and taking the Bill through this House.

The Bill is a concise and well-targeted piece of legislation, intended primarily to end an anomaly that has existed for as long as the family health services themselves. The Government wholeheartedly support it.

Before I go into detail about the provisions of the Bill, I should like to echo the views expressed by my noble friend when she mentioned the sterling service given by family health service practitioners to their patients. They do an excellent job and noble Lords will know of GPs, dentists, pharmacists and ophthalmic practitioners who ensure that the service their patients receive is second to none.

On a lighter note, I was quite surprised to hear someone talking recently about their GP, extolling his virtues and concluding with the remarks: "He really is very good, especially when he is sober". Fortunately, there are few cases like that, and very few practitioners actually present a danger to their patients. But the National Health Service needs to be able to act to protect patients in these circumstances. Some of your Lordships might have been surprised to hear that the NHS had no power to suspend, for example, a GP whose conduct or practice put his patients at risk. But that is the case. There is a sharp difference between practitioners directly employed in the community and hospital services and in general practice, medical, dental, community pharmacy and optical services—hence the need for this Bill and for the important power it will give to the NHS Tribunal.

Noble Lords may be aware that the tribunal is chaired by a distinguished barrister, Mr. Adrian Whitfield, who, with a lay and a professional member, deals efficiently with the representations made by family health services authorities. I take this opportunity to pay tribute to the tribunal for the thorough and sensitive way in which it carries out its work.

Nonetheless, for the reasons my noble friend has explained, the tribunal cannot order the immediate suspension of practitioners, however justified it feels the case may be. The new power of suspension contained in Clause 2 of the Bill will put that right. It will enable the tribunal to respond positively where it believes this to be justified.

There is an important point to stress here. The provisions of this Bill only allow suspension, when imposed, to be an interim measure. As my noble friend said, it cannot be an end in itself. That would not be in anybody's interests. Once the tribunal has made a judgment based on the full evidence before it, the suspension will be removed—it will either be replaced by disqualification or the practitioner will be allowed to continue to practise.

Some noble Lords may think that giving the NHS Tribunal a power of suspension places practitioners under a double threat of suspension since disciplinary powers are already available to their professional regulatory bodies. The NHS and the professional regulatory bodies do, of course, have different areas of responsibility, and it is impossible in practice to define where one ends and the other begins. It is possible that some practitioners will find themselves at a double risk of suspension as a result. This seems inevitable in any area where contractual and professional responsibilities overlap. It is already accepted by the medical profession, for example, in relation to other professional proceedings and NHS disciplinary proceedings which run in tandem. There is no reason for reticence in introducing NHS powers to protect the public or NHS services.

The noble Lord, Lord Carter, asked whether the GMC can only act over serious misconduct and what happens to the lesser offences. The grounds of disqualification by the tribunal are different from those of the professional regulatory bodies, which are concerned, as the noble Lord said, with professional misconduct. The grounds for disqualification by the tribunal may indeed be wider.

The noble Lord, Lord Carter, also asked about appeals as a point of law. The restriction of appeal to a point of law only will narrow the possible grounds of appeal. But we think that confining appeals to the point of law will not result in any injustice.

My noble friend also touched on the question of practitioners' incomes during periods of suspension. It is crucial that practitioners should not be disadvantaged at those times because, no matter what the prima facie evidence might be, nothing in the initial stages has been proved against them. So while he or she is suspended, a practitioner will continue to receive an income from the NHS. The detail of exactly how that will operate will be worked out with the professions at a later stage, but we feel that it is important to establish the principle in the Bill.

Your Lordships may feel that this will increase pressure on the public purse. That may well be so, although we believe that the additional burden will be minimal. We are talking about small numbers of cases—only around five or six practitioners are referred to the tribunal each year. We think that suspension is likely to be requested and granted in only a very small number of cases each year.

The Bill also makes provision for a disqualified practitioner to be removed from contact with patients. That person cannot accept work as a locum, an assistant or a deputy to another practitioner or for a health authority. I am sure that your Lordships would agree that that is desirable.

The other provisions in the Bill—devised to assist the tribunal in processing its workload by broadening its membership and to bring rights of appeal into line with those for other tribunals—make good sense and are, I believe, uncontroversial.

The noble Baroness, Lady Robson of Kiddington, asked whether the Bill will make it easier for a patient to lodge a complaint against a practitioner. In itself, the Bill will not influence the present situation. But we have just recently reviewed all our complaints procedures in line with the Wilson Report that was published. We believe that that will make it a simpler system. There is another Bill before the other place which will amend the GMC Bill—that picks up a point made by the noble Lord, Lord Carter—and which will give much more flexibility.

In conclusion, it is worth mentioning just one last point. My noble friend Lady Gardner alluded to the frustration felt by members of the health professions with those who bring the profession into disrepute because of the poor and even dangerous level of service that they provide. I can tell your Lordships that organisations representing those professions also recognise the need for the NHS to have the power to suspend practitioners in extreme cases.

Health authorities for a long time have recognised the need for a power to suspend family health service practitioners. It is in response to their concerns that we have considered the need for such a power to deal with extreme cases and wish to support my noble friend in the passage of this Bill.

9.43 p.m.

Baroness Gardner of Parkes

My Lords, I thank those who have spoken in the debate for their support. I am not surprised that they supported the Bill because it is a very good measure. I also thank the Minister for her comments and her excellent replies on the various points.

Perhaps I may just say to the noble Baroness, Lady Robson, that it is true that the new procedures are coming in; but one way in which this Bill might help is that now if a patient writes in with a complaint to the Family Health Services Authority, it will have access to this additional power in its armoury. That is very effective in itself.

That power will also have a valuable deterrent effect. People who have been so completely cavalier in the past and thought that even if things went wrong they could get away with it, or that it did not really matter, will be given cause to think. That will be another effective aspect of the new power. It is really, therefore, just another weapon in the national health armoury, but a valuable one. I thank all those who spoke on this matter. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.