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Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006

Volume 684: debated on Thursday 6 July 2006

rose to move, That the draft order laid before the House on 19 June be approved [31st Report from the Joint Committee].

The noble Lord said: My Lords, this is an order about patients: they are at the heart of our changes to the regulation of medical practitioners and other health professionals. The order will improve the way in which the General Medical Council protects patients, first, by simplifying the registration structure and removing discrimination against suitably qualified overseas medical graduates. Secondly, it revises the training requirements for newly qualified medical practitioners with provisional registration. Thirdly, it clarifies arrangements for the temporary registration of visiting eminent specialists and other overseas practitioners visiting the United Kingdom for a special purpose—for example, embassy doctors. Fourthly, it requires new registrants to demonstrate at the point of registration that their fitness to practise is not impaired. It also takes steps to ensure that practitioners cannot derive any unintended benefit by virtue of their name being suspended from the medical register. It introduces compulsory indemnity insurance cover for practising medical practitioners, and it requires newly qualified or restored practitioners to work in an approved practice setting.

The Government have a programme to modernise the way in which health professions are regulated, and this order fits into that. It continues the process of updating the Medical Act 1983 carried out in the amendment orders of 2000 and 2002. In a number of important respects, it follows the model used for dentists, nurses, opticians and other health professionals. Our work is making regulation more responsive to patients’ needs and better at protecting them.

There have been some suggestions that the Government should end the present system of professional regulation, but that would be the wrong response. Instead, the Government are strengthening regulation in the public interest. It has also been suggested that issues such as the consideration of this order to amend the Medical Act would be better held back until after the release of the findings of the Chief Medical Officer’s review of medical regulation in the light of the fifth report of the Shipman inquiry. However, the contents of the order are essentially a fine-tuning of the regulation of doctors and the administration of the General Medical Council and are outwith the remit of Sir Liam Donaldson’s review. The order covers issues that we should want to be addressing irrespective of the findings of Sir Liam’s review, and it in no way pre-empt his recommendations.

Regulatory bodies have risen to the challenge. The General Medical Council has played a full part in bringing the changes about and it has worked hard to develop the further proposals in this order with us—most of them began as GMC proposals. I will summarise the main changes that the order brings about.

The first significant change that we encounter on reading the order, after some material about renaming the GMC’s registration decisions panel, is found in Part 2, which introduces amendments relating to the abolition of the register of practitioners with limited registration. This has several purposes. It improves the availability of suitably qualified medical practitioners for the benefit of patients, it simplifies the registration system and it removes possible discrimination against suitably qualified international medical graduates, wherever in the world they have trained.

The second major feature is a revision of the training requirements for newly qualified medical practitioners with provisional registration who are training in the United Kingdom. In future, the GMC will require all provisionally registered doctors to complete a programme for provisionally registered doctors. The content of the programmes and the bodies that will be allowed to provide them will be determined by the education committee of the GMC, which will appoint visitors to check that the standards that it has set are being complied with.

The next major feature is a clarification of the provisions covering temporary registration for visiting practitioners who qualified outside the European mutual recognition area. Section 27 of the Medical Act is to be replaced by new Section 27A, on temporary registration for visiting eminent specialists, and new Section 27B, on special purpose registration. Both new sections set out arrangements for the conditional, temporary registration of overseas doctors.

We then turn to questions of fitness to practise in connection with registration covered in Part 5. Entitlement to registration under the Medical Act will be conditional on the demonstration that an applicant’s fitness to practise is not impaired. The registrar of the GMC is given extended powers to obtain information to confirm that an applicant’s fitness to practise is not impaired at the point of registration. If new information emerges later showing that the practitioner’s fitness to practise was so impaired at the point of registration, the registrar may take steps to remove the practitioner’s name from the register.

In Part 6 there are new powers for the GMC, post-registration, to apply to the relevant court to require the production of documents or information related to fitness to practise that have not previously been forthcoming. Part 6 also provides clarification of the GMC’s powers to disclose fitness-to-practise information where it regards it as being in the public interest to do so.

Part 7 provides that, where a person’s name is suspended from the register, they be treated in certain circumstances as if their name were still on the register, to avoid them deriving any unintended advantage where fitness to practise may be pending. Part 8 simplifies the arrangements for dealing with cases of fraud or error with regard to registration, allowing these to be dealt with by the GMC’s registrar with a right of appeal to a registration appeals panel. Part 9 clarifies that the revalidation of a medical practitioner’s licence to practise can take place at any time, and it permits the GMC to make regulations that will require medical practitioners to provide the GMC with information to assist it in determining when and how to revalidate them.

Part 10 contains a new requirement that all practitioners with a licence to practise should be covered by an adequate and appropriate indemnity or insurance arrangement. That has previously been good practice, but not mandatory. It is in line with arrangements introduced or soon to be introduced for other major healthcare professions. Part 11 requires all newly registered practitioners and certain of those newly restored or transferred from the limited register to work in an approved practice setting until their first revalidation. That will ensure that such practitioners receive the support that they need to enable them to practise effectively and safely.

There are also one or two lesser provisions, including some relating to registration fees. For instance, the renewal of registration fees will no longer necessarily be linked to the date of a practitioner’s first registration. Finally, there are minor unconnected amendments to the OpticiansAct 1989, relating to the main purpose of the General Optical Council, and to the Nursing and Midwifery Order 2001, relating to its election scheme.

These are significant reforms, which will make a real difference to patients. Organisations as varied as the GMC, NHS bodies and the BMA have expressed support in a full public consultation exercise. The results of that consultation have been made available. I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 19 June be approved [31st Report from the Joint Committee].—(Lord Warner.)

My Lords, I thank the Minister for introducing the order, which in broad terms I welcome. I have a few comments and questions.

The first main change that the regulations will bring about is the abolition of limited registration for international medical graduates and its replacement with a single registration structure for all doctors. I recognise that the current system is seen as discriminatory towards graduates from overseas and as carrying with it an unwelcome element of complexity. Healthcare regulation has changed a great deal over the past few years and it is right that we should review the merits of having limited registration status when there are other checks and balances in the system, such as appraisal, clinical governance and notably, in the future, revalidation.

Nevertheless, we need to remember why limited registration was thought in the first instance to be desirable. It was to introduce an additional safeguard for patients where doctors came to this country without having first gained their qualifications here. We need to make sure that international graduates who will now be eligible for full registration are of an equivalent standard to that of medical graduates who have qualified in the UK. It is impossible for the GMC to vet and approve every medical school overseas, so the suggested answer is to try to introduce an element of testing and supervision of international graduates who are applying for full registration.

The PLAB test has been established for many years and will continue. The order proposes that overseas doctors with an acceptable qualification should now be channelled initially into approved working environments where there is provision for adequate supervision. That raises three, perhaps obvious, questions: what should count as an acceptable qualification, how should the approved working environments be selected and what mechanisms will ensure that supervision in those environments is adequate? The answers to those questions will largely lie with the GMC, which, I am sure, is under no illusion as to the need to deliver a system that is at least as safe for patients as the current one. We understand that much of the detail will be spelt out in GMC guidance.

In passing, it is reassuring that new Section 21(c) refers to provisional rather than full registration in cases where international graduates who may have passed the PLAB test are nevertheless not able to satisfy the registrar that they have had the necessary clinical experience in their own countries. Knowledge and skill are essential, but, equally, so is experience. Does the Minister agree that it is important for there to be clear criteria governing what should qualify as an approved working environment and that approved status should not necessarily be viewed as being permanent, if, for example, there are reasons to question a particular organisation’s fitness for purpose in this context?

The order contains a power for the GMC to erase a doctor from the register if it is shown that he failed to declare an impaired fitness to practise at the time of his registration. There is a distinction to be made here between someone who knowingly deceives the GMC and someone who does not. The order does not make that distinction, and perhaps the Minister could comment on that point.

The GMC is also being given power to disclose fitness-to-practise information about doctors, including information about their fitness-to-practise history. If I have a concern about that, it is that doctors should be fairly treated as individuals. The GMC has a policy of not publishing information about the physical or mental health of a practitioner, and that seems right and proper. At the same time, the exercise of the powers granted to the GMC is highly dependent on what its policy happens to be at any particular time. The powers granted to the GMC are extremely broad. Given that we believe in professional self-regulation—and I was glad to hear the Minister’s comments on that point—I am not suggesting that that is wrong. However, where the GMC believes that it is in the public interest to disclose historic information about an individual, it is important for that practitioner to have at the very least an automatic right to make representations to the GMC if he or she wishes.

The order allows the GMC to dispose of fitness-to-practise cases without a hearing where the doctor agrees to abide by certain undertakings. There are obvious dangers there. One is that if cases are disposed of in that way without a full hearing taking place, the public may believe that the issues are simply being brushed under the carpet. If an aggrieved patient is involved in the case, he or she needs to have a say before the final decision is taken. I am not sure how many cases the GMC believes can or should be dealt with in this way, but there seems to be a need for some ground rules as to what sorts of case should and should not be eligible for consensual disposal. At the moment, we lack that sort of information. Fitness-to-practise hearings are time-consuming and expensive and it would not be desirable for consensual disposal to be regarded as a cost-saving alternative to due process.

Lastly, I should like to touch on the issue of mandatory professional indemnity or insurance. I am aware that there is widespread support for this proposal, which we have debated previously in the context of dentists. However, I have received representations on whether discretionary indemnity provides cover that is as robust and reliable as that provided by conventional insurance. My view is that both indemnity and insurance have their respective advantages and disadvantages and that both should be allowed in principle. However, it should be up to the GMC to draw up its own rules on what should qualify as adequate and appropriate cover. The level of cover for every individual doctor should be subject to regular review to reflect his or her type of practice. The penalties for a doctor not having adequate and appropriate cover are potentially severe, but what matters is that the right cover should be in place. Doctors need guidance on this.

I look forward to the GMC publishing its detailed proposals on all these matters. Meanwhile, I am content for the order to be approved.

My Lords, before I begin I should declare several interests. I am a former member of the General Medical Council, of its fitness to practise committee at various stages, and of its education committee. I am also an honorary fellow of the Royal College of Physicians and the Royal College of General Practitioners, so I could be said to have an interest in some of this.

Broadly, this order seems eminently sensible to us, and the Government are to be praised for having consulted so widely. Their report on their consultation is excellent. However, not all the questions have been answered, and I share some of the concerns expressed by the noble Earl, Lord Howe.

We have all had representations from the MDU and the MPS, for which we are grateful. They raise some serious issues, and the noble Earl, Lord Howe, has addressed them to some extent. New Section 44C gives the GMC powers to require doctors to have mandatory indemnity and also to determine what constitutes “adequate and appropriate indemnity”—that is absolutely right. It must be right that doctors should have compulsory insurance or mandatory indemnity. But the Medical Defence Union argues that this order may allow discretionary indemnity to be used to indemnify doctors and that such doctors would then have no right to receive assistance with a claim but only the right to request assistance. Given the scale of some payments in the current climate, might not discretionary indemnity be simply inadequate to meet doctors’ and patients’ needs—assuming that the MDU is right? I do not know the answers to any of these matters; I am genuinely asking the Minister for clarification.

The Medical Defence Union has argued that discretionary indemnity is not regulated, and nor are the providers of wholly discretionary indemnity, in the manner in which insurers and providers of insurance are regulated by the FSA. It also argues that there is no contract, that no companies providing discretionary indemnity may give a doctor a guarantee that they will assist with clinical negligence claims, and that to do so would be to carry on an unregulated insurance business, which is a criminal offence.

The MDU gives a variety of other reasons why it is concerned; but one can see why that may be the case, because both kinds of indemnity and insurance have existed in parallel over many years. It seems significant that three UK healthcare regulators—the general optical, osteopathic and chiropractic councils—already require healthcare professionals registered with them to have an insurance policy because they received legal advice that discretionary indemnity does not meet the definition of “properly insured”.

Will the Minister clarify whether the Government are concerned about that and whether they think the MDU’s representations are right or wrong? They may be right, but I simply do not have the expertise to tell. It would also be good to hear whether the Government will insist that an indemnifier give an explicit and enforceable undertaking to pay for negligence claims that arise from normal clinical practice. The MPS says that it has never withheld such payment, but what would happen if others joined the market? Indeed, one might argue, as the MDU does, that the indemnifier and the terms and conditions of indemnity should meet minimum terms and conditions. That seems nearer the Medical Protection Society’s position, but it would be good if the Minister could clarify that.

The question of indemnity cover for retired doctors was raised in another place. Again, it would be very good to hear what the Minister has to say about this and how satisfactory the situation will be.

The second point is the change from limited registration, which the noble Earl, Lord Howe, raised. Those who would formerly have had limited registration, such as those who graduated overseas, will now have full registration. How will that work in practice? Who will undertake the approval in approved working environments—another point raised by the noble Earl, Lord Howe—and how will the approved working environments be monitored in the longer term? What will the standard be and, as the Member for Westbury asked in another place, what will be the impact on existing trainees who are supervised? It would be very good to hear how the Minister perceives that monitoring will be approached.

Generally, however, we are very pleased that this measure gets rid of some of the unfairness to doctors who have not trained in the UK and who wish to continue training here. But how does that fit with new decisions to change the immigration status of doctors from overseas, who have in the past served us so well in the National Health Service? We have discussed this before, including recently in Questions, and we will no doubt do so again, but it would be good to hear what the Minister has to say about what might be argued to be two apparently mutually contradictory policy directions.

The Member for Romsey in another place raised the issue of mutual recognition for EU graduates set out in EU law. That does not include the English language proficiency tests, yet Section 21B(1)(d) states that a person can be registered if he satisfies the registrar,

“unless he is an exempt person, that he has the necessary knowledge of English”.

Sandra Gidley asked the Minister in another place to clarify whether the phrase “exempt person” meant doctors from the EU. The Minister answered, rightly, that EU law requires us to register them as doctors, but he added that there is nothing to stop employers imposing a language requirement on a person seeking to work in a specific place. It would be good to hear from the Minister how realistic and important he thinks that is, as this has been an issue in the National Health Service.

Those issues aside, we are broadly content with the order and are particularly impressed with the consultation that the Government undertook.

My Lords, many technical questions have been asked and I shall endeavour to answer them. I am grateful for the support from both Front Benches. I start with some of the points made by the noble Earl, Lord Howe. I agree that what amounts to an approved setting should be clear. Like him, I suspect that it will not be approval for all time, as circumstances will change, and I expect the GMC to be able to cope with that. I am sure that the GMC will consider this issue carefully before it brings forward guidance.

There need to be ground rules for the consensual removal or disposal of cases, and I am sure that the GMC will also consider this area. Such cases will be those that are not so serious that a person's registration might be erased or formal conditions might be attached. A lesser sanction of undertakings given by the doctor and agreed with the GMC will be in place and, if those are breached, fitness-to-practise action may follow. I can write to the noble Earl with a little more detail on that.

I acknowledge that there is a wide-ranging power for the GMC to disclose fitness-to-practise information in this set of provisions. A section of the report on the consultation draws attention to the fact that the GMC currently discloses much historical information about a doctor’s fitness to practise as a matter of routine. That would occur in situations where the information was already in the public domain; for example, where a doctor had appeared before a fitness-to-practise panel in public and it had decided to erase, suspend or place conditions on the doctor’s registration. So the ability to do that already exists to a large extent. These determinations will always be read in public, and the GMC publishes them on its website. The policy intention here is that these public decisions will form part of the doctor’s record in the list of registered medical practitioners, but if the noble Earl is still uncomfortable with that, I shall be happy to follow up with more detail.

Both the noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, raised the issue of indemnity and insurance. It is government policy for all healthcare professions to have such cover and it is progressively being introduced as Section 60 orders permit. This is a Section 60 order. There are two types of cover and each has a major organisation supporting it: the Medical Defence Union, which proposes an insurance-based approach; and the Medical Protection Society, which favours a mutual approach, sometimes called a “discretionary indemnity” approach. They are coming at this from different points of view but the Government's line is that both have worked well for practitioners. We do not believe that it is right for us to tell doctors which system they should follow. The order provides that practitioners can opt for insurance or indemnity cover or a combination of the two. There will be guidance on this from the GMC, which will consult widely. The guidance to the NHS will require it to consult widely. We know that doctors have to show that their cover is appropriate each time they renew their registration, which has to be done annually, so there is an obligation on doctors to prove that they have adequate cover.

At the moment, half of all doctors and dentists have discretionary indemnity, and history shows that that meets their needs. My honourable friend Andy Burnham in the other place made it clear that we are not aware of circumstances in which these arrangements have been found to be unsatisfactory. We believe that under these arrangements there are sufficient obligations on doctors to demonstrate that they have adequate cover. Arrangements are in place, so we think it best to leave it to doctors to choose between insurance and mutual indemnity.

The noble Baroness, Lady Neuberger, asked whether the Government would insist on minimum standards of indemnity. I think that I have answered that question. As I said, the GMC will make the rules on this after consulting on them, and those rules will require government approval. She also asked whether employers could impose language requirements before employing somebody. Our guidance to the NHS requires them to do so. We are not aware that there is any lack of understanding by employers, or that when they need to assess someone's language competence they do not do so.

Concerns were expressed about the limited registration and what qualifications are acceptable. The qualifications accepted by the World Health Organisation will, as now, allow someone to sit the PLAB test, and the GMC will publish guidance about practice settings, so that we can ensure that those are appropriate.

The noble Baroness, Lady Neuberger, raised issues regarding changes to the Immigration Rules, which we have debated in this place. I do not doubt that we may have other debates on that. The important point in the context of this order is that any existing leave will continue under the conditions in which it was granted. If someone has valid leave as a postgraduate doctor or dentist, they can continue in their current post and take up any other relevant training posts that they have sufficient leave to complete, until their leave expires.

This is a complicated issue on which we have had wide consultation with the various interests. I recognise that some people wish that this had not been brought about, but it is important to bear in mind that the purpose of these changes was to ensure that the expanded number of UK medical graduates could proceed through the postgraduate training courses to specialist qualifications. It is important that we become more self-sustaining in our output of doctors, and do not rely on doctors from overseas being attracted here. That is not to say that we do not recognise the major contributions made currently and in the past by doctors who are international medical graduates.

If I have missed anything, I will follow it up and write to noble Lords. That is my best attempt at answering the questions raised.

On Question, Motion agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure until 2.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 2.12 to 2.40pm.]