§ 12.14 p.m.
§ Lord Hunt of Kings Heath rose to move, That the draft order laid before the House on 29th June be approved [24th Report from the Joint Committee].
§ The noble Lord said: My Lords, this order concerns doctors, to whom I wish to pay tribute. We all rely on their expertise and ethical obligations to ensure that when we have to see them we shall be looked after properly. As I said in an earlier debate, we know that the great majority of doctors provide an excellent service and give their patients the best possible care.
§ Sadly, some doctors let down patients, their colleagues and their profession. Some, like Harold Shipman, bring shame on the whole profession because of their criminal acts. The public has to be protected from doctors who as a result of their conduct, competence or their health pose a threat to patient safety. We must be confident that we have the best systems for regulation and self-regulation firmly in place.
§ The General Medical Council must exist to protect patients. It must be truly accountable. It must be guided at all times by the welfare and safety of patients. Recent scandals involving a number of incompetent doctors have shocked the public. That is why such urgent action is required.
§ There is no doubt that the present systems have to be strengthened and changed. There are currently various gaps and loopholes in the GMC procedures which mean that doctors who may be a danger to patients can continue to practise. That is neither acceptable nor in the public interest.
§ Urgent action is needed to widen the powers of the GMC so that it can deal quickly and more effectively with doctors whose fitness to practise comes into question. This action is the first step in expressing the Government's determination to apply the lessons of recent events so that patients get the protection they deserve. The action we are taking, therefore, has to be seen in the context of the need for wider and broader change, which will be the subject of further discussion with the GMC.
§ The Government consulted on four proposals to widen the powers of the GMC: first, a new power to impose interim suspension or conditions quickly in any circumstance, including cases of performance and health; secondly, giving practical meaning to the GMC's premise that doctors who are erased from the medical register should not expect to return, save in the most exceptional circumstances, by introducing a minimum erasure period of five years; thirdly, placing a statutory duty on the GMC to notify employers and any other person or body who may need to be 1729 informed of doctors whose fitness to practise is being formally considered by the GMC; fourthly, the GMC will be given a power to require health service and other bodies to supply information or to produce documents relevant to the GMC's consideration of a case; and, fifthly, enabling the GMC to co-opt non-members of the council to the professional conduct and other committees in order to open up the council to wider involvement in its committee work, tackle the backlog of cases currently under consideration and bring in wider views and experience.
§ The proposals were published for public consultation in Modernising medical regulation: interim strengthening of the GMC's fitness to practise procedures on 24th March 2000. I am pleased to say that there was widespread support for the GMC's powers to be enhanced as proposed, including those from consumer representative bodies, NHS trusts and health authorities.
§ Medical and other healthcare professional bodies, including the Royal College of General Practitioners, the BMA and a number of the other medical Royal Colleges, also agreed the thrust of the proposals but stressed the importance of striking a balance between the public interest to protect patients, the profound effect of suspension on a doctor and natural justice.
§ It is important to note that in future the GMC will be able to impose interim suspension or conditions in any circumstance, including cases of performance and health. The power will be sufficiently wide so that the GMC can act swiftly and more effectively in response to unforeseen circumstances, which if it was unable to act would place patients at risk or damage public confidence in the medical profession. This proposal was well received. Many responses commented on the inadequacy of the current arrangements and the need for improvement.
§ This new power of interim suspension does not interfere with the financial arrangements for single-handed GPs, nor should it mean that single-handed GPs are disadvantaged. Doctors whose names are erased from the medical register represent the most severe cases of conviction or serious professional misconduct. When a doctor is removed from the register it is on the premise that he or she should not expect to he restored. The presumption is that if you are struck off, it is for life save in exceptional circumstances.
§ Currently, however, a doctor whose name has been removed may apply to have it restored after 10 months. If unsuccessful, he or she may apply every 10 months thereafter. Between the period 1988 and 1999, 153 doctors were erased and 39 were restored. The GMC proposed a package of measures, including a minimum erasure period of three years. The Government welcomed those proposals but believed that they did not go far enough and proposed a minimum erasure period of five years.
§ We believe that that would more closely match the GMC's own policy that doctors who are erased from the register should not expect to return, and give 1730 practical meaning to the presumption that when a doctor is struck off it is for life, save, as I have said, in the most exceptional circumstances.
§ The present arrangements need to be tightened, especially in relation to the period a doctor has to wait before he or she can apply for restoration. Views on the minimum period of erasure fell into three fairly evenly matched groups: those who agreed with five years; those who argued that more than three years would be tantamount to a life ban, and those who had no fixed view one way or the other and were much more concerned about having a rigorous assessment of a doctor's fitness to practise before he or she could ever be restored to the register.
§ The weight of public interest and the protection of patients is such that a minimum period of five years is not considered to be inherently incompatible with the ECHR for lack of proportionality. There was very strong support for the new disclosure provisions, which were particularly welcomed by private health care organisations, medical agencies and universities in respect of doctors working in the NHS on honorary contracts.
§ The proposals to allow the appointment of non-GMC members to committees were also very well received by the majority of respondents. There is general concern and dissatisfaction with the time taken to resolve cases referred to the GMC, and with the mounting backlog. This proposal has the potential to bring to the GMC a much-needed patient perspective to fitness to practise issues. It will be helpful to have non-members, including both medical and lay people, involved to help open up the council's work and make it more transparent, speedy and accountable.
§ We shall ensure that the GMC has a transparent selection process and proper training for non-members co-opted to GMC committees. The outcome of the consultation confirmed that there is very strong and widespread support for making sure that the GMC has the powers it needs to act swiftly and more effectively when a doctor's fitness to practise is called into question.
§ We have made one substantial additional provision. During the consultation period, reference was made to the case of a doctor who had come to this country from Canada where he had been convicted of raping and behaving violently towards a female colleague. The police reported the doctor to the GMC in June 1994 but the case was not determined until January 1996 when he was struck off. I understand that the GMC is currently considering another similar case.
§ These cases reveal the inadequacy of the current arrangements whereby the GMC cannot affect the registration of a doctor who has been convicted of a criminal offence abroad. The narrowness of the scope of the Medical Act 1983 compares unfavourably with the Dentists Act 1984 which allows the General Dental Council to determine suspension or erasure when a dentist has been convicted of a criminal offence in this country or an offence abroad which would constitute a criminal offence in this country.1731
§ The Government believe that what matters most is the protection of the public from doctors whose fitness to practise, whatever the reason, is called into question, and who would represent a serious risk to patients if allowed to continue to practise until the GMC has completed its consideration. We therefore agreed to the insertion of a clause giving the GMC the power to suspend or restrict the registration of a doctor convicted of a criminal offence abroad which constitutes a criminal offence in this country.
§ Following the consultation, the order has been improved to provide greater clarity, to avoid conflict with other enactments, to make it explicit that it covers doctors holding provisional, limited and full registration, and to ensure compliance with ECHR. In my view the provisions of this amendment order are compatible with the convention rights.
§ It is important that we learn the lessons of recent cases which have exposed deficiencies in the GMC's current arrangements for dealing with doctors who represent a danger to patients if they are allowed to continue to practise. We are determined to apply the lessons of those events so that patients do get the protection they deserve.
§ In addition to those matters which I have raised in your Lordships' House this morning, there is clearly a need for wider and broader change, which will be the subject of further discussion with the GMC, but strengthening the GMC's powers in these important and significant ways is a first step to repairing the damage that has been done. I commend the order to the House.
§ Moved, That the draft order laid before the House on 29th June be approved [24th Report front the Joint Committee].—(Lord Hunt of Kings Heath.)
§ 12.30 p.m.
§ Lord Walton of Detchant
My Lords, there can be no doubt that in the recent past the medical profession has received a bad press. The problems that arose over the Bristol cardiac surgery cases, Dr Shipman, Dr Rodney Ledward and many other cases, very properly hit the public press and, to some extent, dented the public perception of the efficacy of the GMC and its procedures and dented public confidence in the medical profession.
However, I am glad that the Minister, and earlier this morning the noble Lord, Lord Colwyn, expressed a view with which I wholly concur, that the very great majority of doctors in this country are giving excellent service, often under almost intolerable pressure in an understaffed health service. There is little doubt that many of the procedures now being introduced, including the welcome revalidation procedures of the General Medical Council, will add to the burden under which those doctors are practising. However, that is a burden which, subject to full consultation on the implementation of the revalidation procedures, they will, in the majority, willingly accept.
1732 I had the privilege of serving for 18 years on the General Medical Council and, for the last seven years of that period, as its president. I believe that much of the criticism levelled against the GMC in the course of the past few years has not only been ill-advised and ill-informed, but unfair, for the very good reason, as the Minister said, that many of the procedures under which the GMC has been working, as defined in the Medical Act 1983, have been rigid and inflexible. Many of the issues which it hoped to resolve have not been possible within the present framework of legislation.
During my presidency I and other members of the council became increasingly aware of the fact that we did not have procedures adequate to deal with incompetent or under-performing doctors. It was for that reason that we began consultations as long ago as 1985 on the possibility that new procedures might be introduced to deal with performance review in the medical profession. Under the distinguished presidency of my successor, the noble Lord, Lord Kilpatrick of Kincraig, those recommendations and consultations gathered pace but it took a full 10 years until 1995 before the performance review procedures were accepted as an amendment to the Medical Act. The process was long and tortuous, involving extensive consultation.
At that time, many of us wished to see additional powers vested in the GMC. We wanted to see a single form of registration introduced for all overseas doctors and a whole series of amendments to health procedures. But when we consulted with the government of the day at that time upon whether they would be likely to accept amendments to the performance review Bill or amendment to the Medical Act at that time, we were told that if we pressed such amendments, we would lose the Bill which the medical profession wished to see introduced. Happily, under the Health Act 1999, it is now possible to amend the constitution and procedures of the GMC by order, which is exactly what we are consulting about today.
I have to say, as a former president both of the GMC and the British Medical Association, that I was somewhat embarrassed by the vote passed at the BMA's annual representative body last week. I felt it was unfortunate in some respects; but even more unfortunate was the press publicity which covered that particular vote.
Perhaps I may make it entirely clear that the BMA does not wish to see the abolition of the General Medical Council. It stands by the principle of professional self-regulation. I cannot but recall that, in a notable article some years ago, the noble and learned Lord, Lord Hailsham of St Marylebone, wrote that professional self-regulation is one of the glories of a civilised society. In his Jeffcott Lecture to the Royal Society of Medicine, the noble Lord, Lord Dahrendorf, said that professional self-regulation was a principle to be preserved at all costs. He said that the alternative of regulation by the state was too fearful to be contemplated. He spoke with great authority, 1733 having formerly been a German citizen where he had seen the effects of regulation by the state in his original native country.
The BMA is quite clear that, whereas it has criticism of the present constitution of the GMC (upon which I shall comment briefly in a moment), it does not wish to lose the principle of professional self-regulation. It also feels that any reformed council should continue to have a majority of medical members. Where I slightly disagree with its comments is where it says that those medical members should all be involved in active medical practice.
The responsibilities of the General Medical Council are so enormous, not least when service on the professional conduct committee involves such arduous and complex deliberations—often for proper legal reasons—that sometimes cases go on not just for days but for weeks, that it can be extremely detrimental to the professional practice of an individual to have to serve on such committees. Hence it is important that we should keep the opportunity for appointing recently retired doctors who have more time to serve on such committees.
Perhaps I may also comment on the question of lay membership. The public in general do not realise that during my presidency we increased steadily the number of lay members to represent the public interest and that 25 per cent of the council is now made up of lay members. No decision by any committee affecting a doctor's registration can be taken without the participation usually of at least two lay members. Nevertheless, the proposals of the BMA and others to the effect that the number of lay members should be further increased will be welcomed.
Finally, all of the issues raised by the Minister and clearly set forward in his speech this morning are welcome to the GMC and the medical profession. As he rightly said, the GMC has been constrained by the existing provisions of the Medical Act which requires that any conviction or complaint against a doctor, however serious, cannot be acted upon before the preliminary proceedings committee has been able to meet and take full account of legal representations. Hence interim suspension as a possibility is a welcome introduction in that procedure.
As the Minister also said, the GMC at the moment is not able to take account of a criminal conviction in another country; nor indeed is it able, under the Medical Act, to take account of a doctor who has been erased from the medical register in another country. The Minister did not refer to that in his opening speech. One hopes that the regulation will include a similar provision because, under the law at present, that cannot be taken into account by the GMC until it receives notice of a complaint against that doctor.
The one issue upon which the medical profession may disagree with the provisions of the present order relate to the five-year minimum period of erasure from the register. The GMC and the BMA would prefer a three-year period feeling that, with issues such as the principle of rehabilitation of offenders, three years might be more appropriate. After five years the chance 1734 of any doctor being able to return to active clinical practice is remote. My concern is that when I chaired meetings of the conduct committee of the GMC, I often found that lay members of the committee tended to take a somewhat more lenient view of doctors' behaviour than did the medical members. I have a feeling that the knowledge that a five-year ban could be tantamount almost to a lifelong ban may deter such a committee from recommending erasure of the doctor from the register.
With that caveat, I can say that the other provisions set out so clearly in this order are greatly to be welcomed, and I would not in any way wish to delay it. The regulations are timely. The GMC will be meeting next week to consider issues of its constitution and future activity. I believe the Minister is right in saying that consultations must proceed relating to its future structure and future procedures. In the mean time, these provisions are extremely welcome.
§ Earl Howe
My Lords, first, I thank the Minister for introducing this order and for his clear explanation of its meaning and effect. Subject to the points of detail I am about to raise, it is an order that I fully support. However, one thing needs stating first.
I believe it is important to recognise explicitly that the content of this affirmative instrument is very much the work of the GMC itself. Those who try to make out that the GMC has been dragged reluctantly into a process of procedural reform are completely and utterly mistaken. Indeed, anyone who has read the GMC's five-year review or its well-argued and detailed paper on revalidation can be in no doubt of the intensive efforts that it has devoted to these matters over the past few years under the dedicated and thoughtful chairmanship of Sir Donald Irvine.
I have had the benefit of more than one meeting with Sir Donald in recent weeks. I believe that both he and the council deserve our full backing in their efforts to make the GMC procedures more open and effective. The Minister is of course right to say that complaints are taking much longer to resolve than is desirable. That is as bad for patients as it is for the doctors who stand accused. The measures contained in this order represent the first step in making the whole system more responsive to serious, legitimate concerns about doctors and in taking the agonising delay out of the disciplinary process.
We have last year's Health Act to thank for the fact that these changes can be made by the relatively uncomplicated means of secondary legislation, and we on these Benches supported fully that element of the Act. It may be uncharitable of me, but the resolution passed last week by the BMA seemed to me to be ever so slightly hysterical. The GMC recognises, as it has for some considerable time, that change is necessary and that accountability within the profession has to be improved. Unfortunately, as the noble Lord, Lord Walton, so clearly pointed out, it has been constrained by the legislative framework within which it is currently obliged to operate. It is not fruitful to blame the GMC for the slowness of its internal procedures; nor is it appropriate, in my view, to blame the GMC 1735 for the rise in the number of disciplinary cases referred to it over the past few years. Much of that rise is attributable to a failure within the NHS to handle complaints properly on a local basis as they occur. There is a need to ensure that that improves.
That, I suggest, is a pointer for us in this debate, for this statutory instrument is part of a much wider readjustment of the relationship between the medical profession and the general public. The GMC and the changes to its constitution are only one part of the picture. The GMC cannot deliver quality assurance. It is for the NHS and the private sector to do that by putting appropriate clinical governance systems in place. Those systems, too, have to be effective if patient safety and patient confidence are to be protected. Only time will tell whether they are effective; but, if they are, then the regulatory framework need only be light.
I have several detailed questions arising from the order. The first relates to Article 9 and the change in the minimum period of a doctor's suspension, which has increased from 10 months to five years. The Minister will know that both the GMC and the BMA think that the period should be three years; indeed, the noble Lord referred to that fact. They do so because to exclude a practitioner for five years effectively prevents a doctor from ever rehabilitating himself. Underlying the order is a presumption that when a doctor is struck off the register that erasure should be permanent. That presumption is not in dispute. But there will on occasion be cases where natural justice demands that a doctor's fitness to practise is re-examined in the light of intervening circumstances.
In such cases, a doctor has to be given a realistic chance of resuming his career. A minimum period of three years allows for that. Many would argue that five years does not. I wonder whether the Minister could comment on whether his department is satisfied about the human rights aspect of the five-year minimum period? A desire to be tough on malpractice and the causes of malpractice should not overshadow the need for a proper balance to be struck on this issue.
My second question stems from the provision in Article 5 which allows the GMC to suspend or restrict the registration of a doctor convicted of a criminal offence abroad, which constitutes a criminal offence in England and Wales. This is clearly an important measure. Currently over half of all new registrants qualify overseas. The inclusion of offences committed overseas recognises the reality of the make-up of the medical register and serves to treat home and overseas qualifiers in an equitable manner. However, a disproportionately large number of overseas-trained doctors are the subject of complaints to the GMC. Is the Minister aware of the abiding concerns expressed by the GMC, and others, about the lack of any language aptitude tests for doctors who come to the UK from the European Economic Area? Such tests are currently illegal under European law. Is this something that concerns the Government?
1736 There are good arguments for saying that a provision designed to underpin the free movement of labour has the effect of acting against the public interest. It also gives rise to unfairness as between doctors trained in the EEA, who do not take language tests, and doctors trained outside the EEA, who do. Do the Government plan to raise this issue at European level?
Finally, I should like to ask the Minister some more general questions about the Government's approach to the regulation of the medical profession. Up to now, the Government have reassured us of their commitment to uphold the principle of self-regulation, including the independence of the GMC. It would be helpful to have that assurance restated today. It would also be helpful to have an explicit statement of confidence in the professionalism of doctors. One of the disquieting features of the Government's dealings with the medical profession since they came to office has been what one might call the "anti-doctor tone" of many of their public utterances. The release of anti-doctor stories to the media, comments by the former Secretary of State about those involved in the Bristol case and the branding of doctors by the Prime Minister as part of the forces of conservatism all serve to undermine what the Government must recognise as vital to the well-being of our country and the health of the nation; namely, the trust that must exist between doctor and patient.
No one is saying that the Government should try to paper over the cracks in the system and pretend that nothing needs fixing. But the balance of government statements has been wrong. It has damaged the morale of the profession unnecessarily and unreasonably. I hope that we shall not hear much more from Ministers about the naming and shaming of doctors. The cases of seriously under-performing doctors are very few. Dr Shipman is, I trust, unique of his kind. This is not a trivial issue.
Aside from ministerial statements, a major part of the self-confidence of the profession stems from the fact that doctors feel ownership of their own professional standards. To attempt to set those standards from outside without doctors feeling ownership of them would, I believe, do profound damage to the quality of medical care in this country. In that context, I ask the Government the following questions. Do they believe, as I do, that the GMC has a crucial part to play in upholding professionalism and, thereby, fulfilling its essential role which is to protect patients? Following on from that question, do the Government believe in having a medical majority on the GMC?
There have been reports in the medical press that the Government intend to split the GMC's role to enable the Commission for Health Improvement to take over the task of investigating failing doctors. Can the Minister say anything about that? In particular, can he say whether he envisages the commission being given the power to instruct the GMC to suspend a doctor? If the GMC is to find its autonomy watered down in this way, I fear that that will do great damage to the self-confidence of the profession, with the wider 1737 adverse repercussions to which I alluded. It would also somewhat defeat the point of the new power in Article 10 of the order to impose interim suspension on a doctor quickly in any circumstances.
Self-regulation should not only operate; it should also be seen to be operating. If the GMC and its role are part of a wider array of co-regulation shared between the state and the profession, it is important that the balance between the two should be right. From these Benches we shall be maintaining a very careful watch over the way in which the Government proceed over the next few months in their dialogue with the GMC to develop structures of regulation in which the public can have full confidence.
§ 12.45 p.m.
§ Lord Clement-Jones
My Lords, as we heard today, the GMC has not, since it was founded in 1858, come under such an intense spotlight as it has in the past two years. Noble Lords have mentioned the Bristol Royal Infirmary cases, the Shipman conviction and the Ritchie inquiry into the conduct of Rodney Ledward. All those cases have caused the public to question their confidence in doctors and, hence, the effectiveness of the self-regulation system run by the GMC.
Criticisms by junior and senior doctors alike have, over the past two weeks, led to an extraordinary crescendo of criticism by local medical committee representatives and the annual BMA conference of the GMC in its current form. Many commentators are convinced that, unless the GMC reforms itself urgently, the era of self-regulation will be impossible to justify. There is a view among some of those commentators—and clearly among many members of the medical profession—that the GMC has been dragging its feet and that it was only the Shipman case that stirred it into greater action.
I am rather less censorious. There are clearly internal tensions within the GMC, but I have never doubted its president's desire for reform. Moreover, as the noble Lord, Lord Walton, so cogently pointed out, the very statutory structure of the procedures and the GMC's constitution have made reform difficult. For that reason, I, too, welcome the powers contained in the Health Act of last year. That is the context in which we must look at the order before us today.
On these Benches we support the provisions of the order. But there are a number of questions that need to be asked and some comments to be made in connection with the various elements of the order. Previously, as we have heard, there was no power to suspend by the GMC unless there was a complaint or a conviction. It fell between two stools if, say, it was simply a matter of a case being under investigation, even where charges had been laid against an individual doctor.
In that context, we very much welcome the powers of interim suspension by the GMC, but we hope that there will be very clear and specific rules of procedure by the new Interim Orders Committee to ensure natural justice for those doctors who are to be heard before it. A s was pointed out when we discussed the 1738 Bill of the noble Baroness, Lady Knight, on the suspension of hospital doctors in recent weeks, suspension is a serious step and there should be appropriate safeguards for doctors in these circumstances.
On these Benches, our view is these provisions should include a number of different elements. There should be no delay in bringing cases before the IOC. There should be a requirement for consultation by the IOC, particularly with appropriate practising clinicians. There should be a duty to consider alternatives to suspension, a requirement to give written reasons for decisions, and a right to appear in person before the IOC, and be represented. If the practitioner desires it, there should be a right for the hearing to be in public. Finally, there should certainly be a right not to be arbitrarily or unreasonably excluded from work premises. Many of those were elements which were very helpfully picked up in the Bill, which did not have government support, but they are nevertheless important elements of what should be in the GMC's codes of practice.
I turn now to restoration to the register. Currently a person struck off can apply for restoration to the register after 10 months. Clearly, as we all agree, this is inadequate. The new regulations will ensure that nobody can get back on the register until at least five years have elapsed. Some have called for lifetime bans, others including the GMC, prefer a three-year minimum period for being struck off. They believe that if a longer time is chosen as a minimum, a doctor might become totally deskilled. That would virtually constitute a life sentence in itself. I part company with the noble Earl, Lord Howe, and the noble Lord, Lord Walton, in that I suspect that these proposals have just about got the balance right. The Minister was correct to say that restoration through the register must be clearly seen as an exception.
There will be a duty of disclosure of information by the GMC to employers and others who need to be informed about someone whose fitness to practise is being considered by it. It will also have the power to obtain information from any person including health and other bodies where it is relevant to a case before it. But what safeguards will there be for individual privacy? Will the confidentiality requirements of the Health Act apply? Access to, and confidentiality of, records is an important issue. Will the GMC have more access to patients' records than patients themselves? What permissions will be required?
We very much welcome the proposals for non-council members on GMC committees. But what numbers are proposed? Is it proposed, as I believe, that there should be 50 such members who can serve on the GMC committees, such as the professional conduct committee? Can they serve on all the committees of the GMC, and not simply on the professional conduct committee?
We welcome other provisions in the order, and particularly the ability to treat criminal offences committed abroad as serious professional misconduct without further proof. The order will bring the GMC's 1739 powers into line with those of the General Dental Council under the Dentists Act. As far as it goes, this is a welcome package of reform. At the same time, however, we should not let the opportunity pass without considering what other key elements are being put into place, and whether they will be sufficient to restore public confidence in doctors, and professional confidence in the GMC.
The Minister alluded to several further developments. We welcome the GMC's recent proposal on the introduction of revalidation. But when will the consultations be completed, and what process is needed to ensure that they come into effect? Many of us are impatient to see a sensible scheme introduced quickly. The Royal College of General Practitioners is to be congratulated on having been early in the field, in November 1999, with its revalidation proposals for clinical general practice, but one asks why other members of the medical profession have not been quite so speedy.
We also welcome the reviews of the structure and legislative framework of the fitness to practise provisions, and of the structure, constitution and governance of the GMC which were announced in May. Currently, as the noble Lord, Lord Walton, pointed out, some 25 out of 104 members of the council are lay people. We very much welcome the increases that have taken place over recent years, and we believe that the principle of self-regulation should be retained if possible. But I very much hope that the GMC will work towards a lay presence on its council of nearly 50 per cent. What is the timetable for the review?
We also welcome the commitment which the GMC has made to speed up its procedures, partly assisted by what will be its new-found ability to have non-GMC members on its professional conduct committee. The GMC's workload has risen enormously. Complaints have risen by three times in six years, and I understand that there is a backlog of some 160 cases. I know personally of cases where severe injustice and heartache are being caused by delays in cases being heard. It is vital that the processes are massively improved and, if necessary, that more resources are devoted to ensuring that cases are heard more quickly.
Other issues clearly need addressing, such as information on candidates up for election to the council. The case of Dr Jennifer Coleman, who had been struck off in 1987 for professional misconduct, highlights the need for reform. We also need to be very clear about the demarcation between the NHS and the GMC in respect of clinical governance, and complaints about clinical performance. How do people know to whom to complain? Who sets the standards? How do doctors know to whom they are accountable, and what safeguards do they have against arbitrary action?
I understand that the Government are due to publish their plans on clinical governance later this month following the consultations on Supporting Doctors—Protecting Patients, along with the new national plan. Can the Minister confirm that this will ensure clarity on the relationship between health authorities and trusts, and their powers and duties, and those of the GMC?
1740 Pension entitlement is also a matter which generates considerable heat. This is clearly a Department of Health issue, but it is clearly wrong that a doctor found guilty of misconduct should be bale to retire on a full pension. What action will the Secretary of State take to ensure that appropriate steps are taken?
At the end of the day, whatever the contents of orders, there is a limit to what can be done by procedures and processes. It is values and culture which matter, and which will prevent another Bristol or Shipman case and make sure that the James Elwoods and Rodney Ledwards of this world do not continue to practise. As Jean Ritchie QC pointed out in her report on the conduct of Rodney Ledward, we need a much more open whistle-blowing culture within the NHS. This is helpfully recognised by the Chief Medical Officer's recent paper Organisation With a Memory, on the reporting of adverse care events. It was also recognised in the latest edition of the GMC's Good Medical Practice. Doctors must clearly be seen to be on the side of the patient, not an incompetent colleague, and the GMC must reflect that in the way in which it operates.
We are heading in the right direction, but we need to move further and faster than we have ever done to date, and I hope that we shall see before us a much more fundamental Order in Council, containing reforms of the GMC and its practices, in a very short space of time.
My Lords, much of what I wanted to say has already been said, and so I shall be brief. I declare an interest, in that I am a current member, although rather green, of the GMC council.
I support the order and the five elements within it of powers of interim suspension, a tougher restoration regime, a duty to disclose to the Department of Health and employers, a power to co-opt non-members on to the fitness to practise committees, and a power to take action on overseas convictions. The provisions will strengthen the self-regulatory role of the GMC. The argument about three or five years has now passed; and I believe that we should settle for five years.
The order is only a small step towards a modern framework of medical regulation. Far more significant, I believe, will be embedding the process of revalidation, the proposals emerging from the structural review regarding fitness to practise, and the review of the constitution and governance. I would support a smaller council and 50:50 lay:medical membership of the GMC.
I agree with my noble friend Lord Walton that the BMA resolution was at the least unfortunate and unwarranted. There should be no doubt of the GMC's commitment to reform and the strengthening of self-regulation. I support the order.
§ 1 p.m.
§ Lord Hunt of Kings Heath
My Lords, this has been a remarkably well informed and interesting debate. The noble Lord, Lord Walton, was an outstanding president of the GMC and did many things to modernise the GMC during his presidency. I noted 1741 with interest his comments about his frustration in trying to get changes made to its procedures. This is the first time we have debated an order laid under the provisions of the Health Act 1999. The order concerns a crucial matter. I am happy to pay tribute to the GMC's role in helping us take these matters forward.
The noble Lord, Lord Walton, mentioned the public debate on the role of doctors, the public's perception and the kind of media flurry that we have witnessed in the past few weeks. I say to the noble Earl, Lord Howe, that I continue to pay tribute to the vast majority of health professionals in this country and to doctors in particular. As we take forward the changes to the health service and the national plan, we need very much to walk arm in arm with those professionals. The whole process of developing the national plan has involved many doctors and other professionals, leaders of the professions and people in the field who are leading change. That is the partnership approach. It is the only way in which we shall establish the kind of changes we wish to see in the National Health Service.
The noble Earl, Lord Howe, and the noble Lords, Lord Walton and Lord Patel, referred to the deliberations of the BMA last week. All I say in that context is that I believe that it is in the best interests of the profession and the public that the profession as a whole pulls together, works together and marches in the same direction. That is also the foundation on which we wish to work in partnership with the profession in regard to the changes that need to take place in the health service.
The noble Lord, Lord Walton, referred to the workload of members of the GMC. I do not think that anyone can disagree with that. That is why I think that the proposal of the GMC to co-opt 50 non-members, 30 of whom will be lay members and 20 of whom will be medical members, is widely to be welcomed. I am sure that it will greatly assist the GMC, both in bringing in more people from outside but also in dealing with the backlog of cases on which I shall comment in a moment.
I turn to the five-year minimum erasure period. I was glad that the noble Lords, Lord Patel and Lord Clement-Jones, supported that period. I am aware that there has been considerable debate as to whether that is the correct period. However, I reiterate the points that I have already made. The doctors we are discussing represent the most serious cases. When a doctor is struck off, he or she should not expect to return, save in the most exceptional circumstances. Given the seriousness of the cases that will be considered under these procedures, the Government believe that a five-year minimum period gives practical meaning to the presumption that when a doctor is struck off it ought to be for life.
The noble Earl, Lord Howe, mentioned the position of doctors who are forbidden to practise for a lengthy period being unable to gain practical experience of technological and other changes affecting patient care. Any doctor who after the five-year period wished to apply for restoration, must first be able to satisfy the GMC that he or she can satisfy an assessment of 1742 knowledge, skills and aptitude to practise medicine. This kind of assessment is already in place for over seas doctors who may wish to practise medicine in this country. However, I fully accept that the GMC will need to consider how that test should be applied in these cases.
The noble Earl, Lord Howe, also asked how the five-year period complies with the requirements of the European Convention on Human Rights. I am advised that the right to practise as a doctor has an economic value and therefore constitutes a possession in the context of Protocol No. 1 of the European Convention. An erasure from the medical register is clearly an interference with that possession. There are three tests as to whether any interference is justified: that it is in accordance with the law; that it is in the public interest; and that there is a fair balance between the interest of the individual and that of the public. It is the Government's view that the five-year erasure period is not incompatible with those conditions.
The noble Lord, Lord Walton, correctly pointed out that the GMC cannot erase a doctor struck off in another country without a complaint. The order before us today does not address that matter. However, we shall bear that matter in mind for the next round of changes relating to the GMC's own review of its fitness to practise procedures. I very much take that point on board.
I turn to the question raised by the noble Earl, Lord Howe, with regard to the backlog of cases. I am happy to say that in his letter to the Secretary of State in May, Sir Donald Irvine stated that by the autumn the GMC should not have delays in handling new cases other than in bringing those which have completed screening forward for hearing by the relevant committee. By the end of 2001 waiting times will be within an acceptable standard. We must hope that the addition of new members from outwith the GMC, which I have already mentioned, will very much help that process.
The noble Earl, Lord Howe, asked about language tests. The EC directives on free movement mean that the GMC cannot require doctors of EC origin who have qualified in the EC to satisfy a language test as a condition of registration, although it can in the case of other overseas doctors. However, NHS employers are responsible for ensuring that doctors whom they employ have a satisfactory command of English and can communicate effectively with patients and colleagues. NHS employers have been issued guidance on language testing and their responsibilities. I should be happy to send that guidance to the noble Earl.
The noble Lord, Lord Clement-Jones, asked a number of questions concerning the procedures under which the order will operate. Assuming that the order is accepted by the House today, I confirm that the rules of procedure will be made known shortly. Many of the concerns that the noble Lord has raised will be covered in those rules. There are various safeguards; for example, an interim suspension cannot exceed 18 months. After that period has elapsed, the GMC would have to apply to the courts to seek a further 1743 extension. In addition, the first review of the interim suspension has to take place within six months and at three month intervals thereafter.
The noble Lord asked whether a doctor could be made the subject of an order without prior knowledge. I confirm that no order can be made by the interim committee unless the practitioner has been afforded the opportunity to appear before the committee or be represented at the hearing. The rules also provide that if a doctor is not present and is not represented, the committee can proceed with the hearing if it is satisfied that all reasonable efforts are being made to serve the papers.
The noble Lord, Lord Clement-Jones, asked a number of questions about information. I understand that the GMC may disclose any information relating to a doctor's fitness to practise or professional conduct which it considers to be in the public interest to disclose. The GMC intends to use this broad discretionary power sparingly and mainly to disclose information to other public bodies and thereby help to ensure that action necessary to protect patients is taken. I assure the noble Lord that the GMC proposes to develop guidance setting out the criteria it would normally expect to apply when disclosing information under this power. The GMC recognises that its use of the power would rightly be open to legal challenge if it was thought to be acting unreasonably.
A number of questions were asked about the whole issue of future regulation. I am afraid that I shall have to disappoint noble Lords; I am not in a position to respond to the questions. These matters are under consideration and final decisions in relation to the GMC need to await the outcomes of the Bristol inquiry and the Shipman inquiry chaired by the noble Lord, Lord Laming. In the meantime we are encouraging the GMC to make proposals for radical reform for consideration by the Government later in the year.
I hope that I have been able to respond to many of the points raised by noble Lords. I am very appreciative of the general support the House has given to this order.
On Question, Motion agreed to.