Suspension of Hospital Medical Practitioners Bill [H.L.] (Hansard, 24 May 2000)

§ Baroness Knight of Collingtree
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.—(Baroness Knight of Collingtree.)

§ Baroness Knight of Collingtree
moved Amendment No. 1: Page 3, line 3, leave out ("applications under section 1 and"). The noble Baroness said: With permission, in moving Amendment No. 1, I shall speak also to Amendment No. 2 because, as the Committee will see, Amendment No. 1 removes words which Amendment No. 2 replaces. Therefore, the two are clearly strongly linked.
I tabled these amendments in order to meet the points made by the Select Committee on Delegated Powers and Deregulation. The Committee will find its comments set out in its 8th Report of this Session, HL Paper 43. These two amendments deal with the only suggestion made by the Select Committee for a change in my Bill. I would perhaps describe them as "tidying up" and "listening to" voices from outside which were anxious that the Bill was so tidied. I beg to move.

§ Earl Howe
Although, as my noble friend has explained, these are largely technical amendments and therefore are worthy of support, I wonder whether I may be allowed to comment more generally on the subject matter of Clause 4 in the light of our debates at Second Reading. My impression from the Minister's speech at that stage was that, while he recognised the significance of some of the issues highlighted by my noble friend, he did not believe that a Bill such as this was the appropriate way in which to address them, and that the consultation process currently in train was likely to point the way towards other mechanisms which would deal satisfactorily with suspensions as well as with the more general issue of doctors whose clinical performance fell under criticism.
In particular, the noble Lord referred to the need to put in place robust monitoring procedures to ensure that doctors are not suspended unnecessarily, nor for an inordinate length of time. I accept that the CMO's proposals hold out the hope of a fairer and better process for some doctors whose standards of clinical performance are subject to criticism. But, as the Minister acknowledged, there will be cases when suspension is seen by hospital management as the only appropriate option available.
855 I worry that Department of Health guidance may prove insufficiently effective to ensure the proper protection of doctors under human rights legislation, and more particularly to ensure that the systems in place in all hospitals are mutually consistent and consistently fair. I am, for example, concerned that a doctor would have a cast-iron right to independent representation and to a fair appeals process. Is the Minister confident that those aims are achievable without going down the legislative route? In other words, how will it be possible for the Secretary of State to bind hospitals into following set procedures that will deliver the equitable outcomes that we all want to see? If such fairness and uniformity cannot be achieved, the consequence is almost bound to be that doctors will resort to litigation. That would be a highly undesirable phenomenon.

§ Lord Clement-Jones
I do not intend to go into great detail in relation to the subject matter of the amendment. I simply have a couple of questions. Naturally, as we on these Benches explained at Second Reading, we support the Bill and the rights provided under it. Clearly, in the light of the recommendations of the Committee on Delegated Powers and Deregulation, these two amendments are sensible, as the right of appeal to a tribunal is of the essence of the Bill.
Can the Minister say whether, since 13th April, he has considered the issues contained in the Bill in any greater detail? As I said at Second Reading, there are issues in the Bill that are not contained in the Governments proposals in Supporting Doctors, Protecting Patients. There are key safeguards: the requirement for consultation, particularly with "appropriate practising clinicians"; the duty to consider alternatives to suspension and whether that is needed to protect the interests of patients, staff and the practitioner; the requirement to give reasons for decisions and to convey those to the National Health Service Executive and any private hospital—a key requirement; the requirement to review; and the right of appeal to a tribunal, the very essence of the amendment that we are debating.
I do not believe that we can simply treat the consultation as frozen in aspic and await the results of that consultation. I hope that the Minister's mind has been influenced to a degree by the contents of the Bill and by the points made at Second Reading.

§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
A technical amendment has brought us to the core of our debate at Second Reading. The noble Baroness knows that while the Government are not convinced that her Bill is the right approach, none the less, we recognise the conviction with which she brings the matter to our attention. There is no doubt that the issue of poorly performing doctors is one that merits considerable attention by the Department of Health and individual employing NHS trusts.
856 I have reflected on the debate that we had at Second Reading, but to the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, I say that I remain of the view that disciplinary issues such as these should not be a matter for legislation. I say to the noble Earl that I believe that it is possible to ensure that MIS trusts deal with suspensions and general disciplinary matters in an appropriate manner with which I believe your Lordships would be satisfied. It is possible to ensure that that happens through a performance management approach, which is the jargon used in the NHS to describe the way in which the Department of Health can assure, through Ministers and its accountability to Parliament, that the NHS is managed well at the local level.
We put considerable faith in the Chief Medical Officer's paper, Supporting Doctors, Protecting Patients, as that outlines the process of how doctors with problems can be helped. In the future we expect there to be an assessment and support service that will enable employers to deal with problems quickly and ensure that doctors with problems are helped. We believe that, as the majority of doctors who have problems relating to performance will be referred to the assessment and support service, there will be less of a need for suspensions. In future, suspending a doctor would be an exception rather than the rule.
However, the new system would retain the power of suspension of hospital doctors, but that would need to be considered only if a doctor refused referral to the assessment and support service. The employer can take action under internal disciplinary procedures in the case of alleged personal misconduct or failure to fulfil contractual responsibilities to protect patients where there is imminent danger to them or where the new service reports that the referred doctor's problem is serious and intractable.
The current status is that the consultation process is now closed. We are considering the comments that we have received and we shall announce our decisions in due course. However, I remain convinced that the process recommended by the CMO, subject to any changes as a result of consultation, is the route down which we should go. I fully accept that where disciplinary procedures have to be used, including the suspension of doctors, that needs to be an effective and fair system. I can certainly assure noble Lords that we shall have an effective performance management system in place to ensure that that occurs.
As far as the amendment is concerned, the noble Baroness is to be congratulated on bringing the matter to the attention of the House because it clears up the technicality raised by the Select Committee.

§ Baroness Knight of Collingtree
I am grateful to the Minister for some of his words, but perhaps I can comment on what he has said. First, this Bill is not—I repeat "not"—about poorly performing doctors. Out of 201 cases that I have monitored, only 25 were found guilty. The Bill is not brought forward in order t o deal with poorly performing doctors. Secondly, the BMA, which has studied this subject almost as long as I have, 857 is fully in agreement that this Bill is the only way in which to help the injustice that has been taking place because the report does not cover the matter.
On Question, amendment agreed to.

§ Baroness Knight of Collingtree
moved Amendment No. 2: Page 3, line 7, at end insert— ("( ) Regulations made under subsection (2) shall be contained in a statutory instrument which shall be laid before Parliament and subject to annulment in pursuance of a resolution of either House."). On Question, amendment agreed to.