rose to ask Her Majesty’s Government what advice they will seek in formulating their response to the Chief Medical Officer’s report, Good Doctors, Safer Patients.
The noble Lord said: My Lords, now we have the Government’s response, it might be thought that this Question, which I put down some time ago, is somewhat redundant, but I believe I am not too late because the White Paper leaves open the prospect of much further consultation on the ways in which it might be put into practice. Thank goodness for that, because there are some areas of uncertainty which give rise to concern. I am going to concentrate on the proposals as they affect the General Medical Council, and I declare my interest as a former dean of a medical school, past president of a medical royal college, a one-time member of the GMC and currently president of the Medical Protection Society. In all those roles, I have strived to raise the standards, quality and safety of the care that patients should expect to receive from their doctors. So it should be clear where I am coming from when I say that I wonder whether the Government have got it quite right.
Let me try to put the White Paper into perspective. Here I reflect exactly what the Secretary of State says in her foreword:
“It is all too easy to focus on the incompetent or malicious practice of individuals and seek to build a system from that starting point instead of recognising that excellent health professionals far outnumber the few who let patients down substantially”.
She goes on to say:
“Most health professionals meet high standards routinely and have a lifelong appetite to be even better. That professionalism is an unquantifiable asset to our society, which rules, regulations and systems must support, not inhibit”.
Unfortunately, what follows falls somewhat short of those sentiments, yet the facts entirely support her statement. Over 1 million patient/doctor interactions take place each day in primary care alone, and every MORI poll shows high levels of trust in doctors by their patients. The most recent poll undertaken in 2006 showed that 92 per cent trusted their doctors. I hesitate to compare this with public trust in politicians or journalists, so I am not going to embarrass my noble friend, but it is considerably lower. I am afraid that this is a political reaction to journalists’ reports of the infrequent scandals which do occur and may have driven the way in which parts of this White Paper have been drafted. Unlike patients who largely trust their doctors, the White Paper gives a clear impression of mistrust.
Of course we have to protect patients from bad doctors, but we have to be sure that the right balance is struck between protecting the public and being fair to doctors, and I am not sure that we have got it quite right. Despite that, I have to say that there is much which is helpful and deserves support: the GMC continuing to oversee undergraduate medical education is very welcome because it does a good job and should continue to do so; and the introduction of a formal system of revalidation for doctors is also welcome. The fact that the colleges will have a leading role is important. They have been heavily involved for some time in developing systems for regular appraisal, and while they will need time to develop the robust systems required, this too is a very important development. The separation of the investigative and judicial functions of the GMC is an important principle, although it should be pointed out that the GMC has for some time had independent adjudicating panels without any members of the council itself sitting on them. All this is reasonably positive, especially as they all build on existing activities and make them more formal and obvious to everyone.
But we are left with a number of problematic aspects, and I shall concentrate on just two. First, the effect of the rest of the paper is to introduce a much heavier bureaucratic and, I fear, oppressive regulatory burden. It is worth mentioning here that in the UK we have one of the most over-regulated health systems in the world. A recent publication by the NHS Confederation complains bitterly that there are more than 57 regulatory and inspectoral bodies which attract enormous costs not just to run themselves, but also in the time and effort that trusts and doctors have to put into responding. Against that background, the White Paper suggests that we need not only to enhance the role of medical directors to include the monitoring of doctors in their patch and to introduce GMC affiliates at regional level to monitor those medical directors—although it is not yet entirely clear what their role will be—but also strengthening the role of the Council for Healthcare Regulatory Excellence, a body set up to monitor the activities of the GMC and the other bodies, presumably because they cannot be trusted.
In addition to all that, two further new levels of regulation are proposed, the first being regional medical regulatory support teams. They are called support teams, but their proposed membership suggests a heavy employer basis set up to exert control of medical directors and GMC affiliates. These teams will also keep a check on the way the colleges undertake the revalidation exercise—they will “quality assure” it. While it is unclear where they will get the expertise to do this, it does suggest that no one trusts anyone to do their job, and all at considerable expense and the loss of a sense of responsibility on the part of individuals as they hand over their professionalism to yet another body. The second level of regulation is another body at the national level, a “national advisory group” whose role and responsibilities are unclear and the need for which remains uncertain.
I would ask the Minister to look critically at the ways in which we might fulfil everything needed to ensure high-quality and safe care for patients without introducing such a seemingly heavy-handed and complex bureaucracy to achieve it. Do we really need all these bodies to keep a check on the others?
Finally, I want to spend a moment on the vexed question of the standard of proof. The White Paper proposes that the standard of proof in adjudicating on concerns about a doctor’s performance should be lowered from the current criminal standard to a civil standard of proof; that is, one based on the balance of probability. It is proposed that the civil standard should be applied “flexibly” and on a sliding scale dependent on the seriousness of the case. Here I have very real concerns. When I see the word “flexible” applied to the law, I worry, because it leaves open the potential for considerable inconsistencies between similar cases in the judgment of the panels. Furthermore, the words “sliding scale” evoke an image of a slippery slope. We are considering here the potential to deprive a doctor of her or his livelihood and leaving them with an indelible stain on their character and reputation. Of course we must protect patients and remove dangerous doctors, but one wants to be pretty clear about the safety of judgments. A low standard of proof leaves open the real risk of miscarriages of justice.
The White Paper recognises the problem in suggesting that a higher standard of proof will be required when allegations are more serious, but putting this good intention into practice is so dependent on the training of the judging panels and on their ability to be consistent that it is difficult to see how it will work fairly and justly for both patients and doctors. The costs and burden to everyone of a system which seems so loosely drawn up must be a cause for concern, and I ask my noble friend to take this back and at the very least see if he can think of ways in which the system might be made to work consistently and fairly, perhaps by piloting it in some way.
There are many other aspects of the White Paper which I am sure other noble Lords will cover in the enormous length of time in which they each have to speak, but I finish by pointing out that it was the Shipman affair which precipitated much of this work. While Dame Janet Smith’s report failed to throw up any suggestion that the GMC had itself behaved wrongly in any way, we have to ask ourselves whether the proposals in the White Paper would deter a determined murderer who happens to be a doctor. Unfortunately, I rather doubt it. This is an opportune moment to look at what should be done to improve the care and safety of patients, so I welcome the White Paper. But it will be vital to ensure that in the consultations we are now promised, we are able to make it work effectively and, most important, proportionately on the problems we are seeking to resolve.
My Lords, I congratulate the noble Lord, Lord Turnberg, on securing this important debate and giving us the opportunity to help advise the Government on their response to Sir Liam Donaldson’s report. I declare an interest: I am both a fellow of the British Dental Association and registered with the General Dental Council.
The British Medical Association has described the Chief Medical Officer’s recommendations as a missed opportunity that has failed to harness the medical profession’s enthusiasm for change. The Government’s response sets out a programme of changes to the UK’s system for the regulation of health professionals. Sadly, the proposals add up to the loss of professionally led medical regulation.
Professional regulation is a complex area and time is short, so I will limit my remarks to two broad areas. First, there is the critical nature of the four interlocking functions of healthcare professional regulation. Any future Bill put before this House should support the role of regulators in maintaining a robust and accessible register of practitioners, in having a key role in setting the standards for practice and supporting educational standards and in dealing with registrants whose performance consistently or seriously falls below acceptable standards. Any significant fragmentation of those roles would be to the detriment of patient safety. I therefore welcome the importance the White Paper attaches to proper co-ordination and coherence across those interlocking functions.
The second issue is that of the mobility of healthcare practitioners across borders, particularly within the European Union. Sir Liam Donaldson’s report and the subsequent White Paper both raise the issue of communications skills and language competency. While I recognise that there may be limits under European law for blanket language testing of health professionals from the EEA, I am not sure that the White Paper’s response deals with the issue sufficiently. Placing responsibility for language testing on NHS employers may be one part of the solution, but that fails to deal with the large numbers of healthcare professionals who operate outside the NHS or in a self-employed environment where the risks to patient safety may be the highest. I should be grateful if the Minister could clarify this in his reply.
Three minutes is not long enough to comment on these important changes. The White Paper states that the Government will publish a detailed implementation programme. Primary legislation is expected in the next parliamentary Session, although some of the proposals can be implemented through secondary legislation. I hope the Minister will be able to provide details of the timing of the publication of the implementation plan and details of the groups that will have to be set up to give careful consideration to this wide range of changes.
My Lords, I thank the noble Lord, Lord Turnberg, for introducing this debate. I declare an interest in that I was chairman of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and chaired the professional conduct committee. I was also a lay member of the General Medical Council and a member of its professional conduct committee.
The Nursing Midwifery Council is the UK regulator for two professions: nursing and midwifery. The primary purpose of the NMC is protection of the public. It does so through maintaining a register currently standing at 685,000 registrants. The NMC and the GMC both accept the recommendation in the White Paper of moving the standard of proof from criminal, beyond reasonable doubt, to the civil standard, the balance of probabilities. The BMA and the RCN are opposed to the change. Speaking from my personal experience, I would have found it very difficult to make a judgment under the civil standard when considering the future of a practitioner in relation to safety to the public, as well as to the possible loss of livelihood for the practitioner. I realise that the White Paper is suggesting a sliding scale being applied to the civil standard, but surely such an important decision should be based on “beyond reasonable doubt”; that is, a certainty on what has taken place rather than “more likely than not”, while at the same time safeguarding the presumption of innocence of the registrant. The suggested sliding scale is permissive and would give the adjudication panel discretion on how to deal with a particular case. That would create uncertainty for all parties concerned. If the sliding scale were to be introduced, there surely would need to be supporting regulations to provide definitive guidance to all parties.
The White Paper sets out the process for an appeal on the decision of the adjudicating committee; that is, that an appeal will be heard in the High Court. If the adjudicating panel has the status of a court, it surely cannot be right for another court of first instance to hear an appeal. At present, in the civil system, an appeal from either the county court or High Court goes to the Court of Appeal. Surely the adjudicating panel should be on a par with a court of the first instance. Why are Her Majesty’s Government recommending downgrading the appeal from the referral to the Judicial Committee of the Privy Council to a court of the first instance?
The White Paper proposes an implementation plan. Meanwhile, the current regulating bodies must continue their functions effectively and efficiently, while at the same time preparing for the changes. I bring two concerns of the NMC. In the spring of 2008 an election has to be held for the English council members, at a cost to the registrants’ fees. Should the new organisations be in place in 2008, the newly elected members would be redundant and the registrants not amused at their fees being used in this way.
Another concern is that the advanced nurse practitioners are currently practising without the protection of a register to the public and the practitioners themselves. Her Majesty’s Government have indicated that the council will be able to press ahead with a register. Is it not possible to bring forward permission for the council to open a supplementary part of the nursing register when so many advanced techniques are being carried out without protection to the public or the practitioner?
My Lords, I welcome the opportunity to contribute to this debate and to echo the emphasis of my noble friend on the need for wide consultation on this important issue. Some recent disturbing high-profile cases have underlined once again the need to put patient confidence and patient safety at the heart of the governance of the medical profession, but in the necessary push for reform we should also bear in mind that our current medical training and regulatory regime is respected as a gold standard internationally, the overwhelming majority of doctors are dedicated to providing high-quality patient care and patients continue to report high levels of trust in their doctors. This is not a plea for complacency; far from it. It is right that the GMC regularly initiates its own reform agenda as well as welcoming external review. But it is a plea for reform to be proportionate and substantiated.
I declare an interest. I am a member of the GMC’s fitness to practise panel, and I have sat on a number of disciplinary cases over the past year. That experience has provided an interesting contrast with my previous career as a trade union official, where for many years I championed employment rights and represented cases at employment tribunals. I have found the difference in the quality of the experience compelling. In particular, I have been impressed by the meticulous care taken to ensure that fitness to practise panels operate in a fair, transparent and independent manner. The panel selection process, the training, the care taken to assemble the cases, the conduct of the hearings and the review and feedback mechanisms have been refined over many years and are, to my mind, of enviable quality. The overarching principles in good medical practice and a commitment to patient safety cross-reference every stage and every decision. That is not to say that every decision is perfect. Even with the most professional system in the world, human beings are still fallible. In my experience, however, the current GMC culture faces up to those issues and learns from the mistakes, and surely that is the most important response.
I remain concerned that the report proposes a separation of the investigation and adjudication functions in fitness to practise cases. I acknowledge the superficial attraction of adjudication being undertaken by independent tribunals, but fear that the reality would be less expertise, less consistency and less trust in the process. A change of this importance should only be contemplated if the outcome will deliver better quality decisions, seen to be in the public interest, and I do not believe that that case has been made.
Finally, I should like to say a few words on the proposals for local GMC affiliates. Clearly more needs to be done to ensure that professional standards, set nationally, are applied consistently at a local level. But my concern is that the concept of GMC affiliates will concentrate responsibility for local standards in too few hands. Putting it bluntly, it lets everybody else off the hook. The solution to high standards of clinical governance has to rely on good-quality training for medical and non-medical staff, emphasising personal responsibility, and strengthening the employment role of trusts and medical employers.
I urge consideration of phased reform in these areas, with a period of evaluation, before contemplating more complex and, some might say, more bureaucratic changes.
My Lords, I, too, thank the noble Lord, Lord Turnberg, for securing this debate; of course, it would have been better to have had more time.
Much of what I have to say has been covered by the noble Lord, and I agree that there is a clear need for further elucidation of how many of the recommendations would work in practice. However, I am pleased that patient safety is central to all the proposals in the White Paper. But then, I would say that, wouldn’t I? I am the chairman of the National Patient Safety Agency. While I am at it, I might as well declare my previous interests, relating to colleges, the GMC and educational authorities.
I have some concerns, not about the proposals but about how clear, crisp legislation can be drafted on recommendations on affiliates, information-sharing and rehabilitation, for example. Who would the affiliate, as a local regulator, be accountable to? Could there not be a potential conflict of interest? How will she or he work across various NHS and private sector providers of care? Hard regulatory information about an individual practitioner is relatively easy to legislate for, but softer information and its sharing is much more complex. The questions are how and when the work will be taken forward, and who by.
I welcome the proposals on rehabilitation for health professionals who get into difficulty. This is a proper way forward and a modern approach to workforce management. We already have a framework developed by the National Clinical Assessment Service—part of the National Patient Safety Agency—to take this forward. In my view, it does not require further legislation. What is being done to do this and, importantly, how will it be resourced? For example, over the past three years about 500 doctors have been referred to the National Clinical Assessment Service for further evaluation. If revalidation and recertification throw up the same percentage of doctors—about 3 per cent to 5 per cent—the resources required would be considerable.
The briefs that we have received, particularly from the GMC and the BMA, differ in their perception of how this will work. However, my view is that revalidation, recertification and appraisal work, which will now form the statutory responsibilities of the colleges, is the right way forward. The colleges will have to recognise that they will have to produce, as the noble Lord, Lord Turnberg, said, a robust system that can be tested and that they have to be accountable. I hope that they will address that. In my role with the National Patient Safety Agency, I will look to see that patient safety is embedded thoroughly in all the proposals.
My Lords, there is nothing more important for patients who need a doctor to have one who is good, gets the diagnosis correct and sees that the patient has the appropriate treatment and care. Years ago, when I was a member of the Yorkshire Regional Health Authority, I was invited to open a GP surgery in South Yorkshire, which I did. Recently I was told that Dr Shipman had worked there. I shuddered. Doctors are usually trusted members of their community, doing the best for their patients, not killing them.
Last week a physiotherapist told me that she had heard of a very disturbing incident recently. A lady, living in a rural village in North Yorkshire, who did not have family support and was an amputee, had serious diarrhoea and vomiting. The GP visited. The women had only an informal carer. No care plan or professional nurses were arranged. When the GP had not managed to improve the situation and the patient was deteriorating, the informal carer bundled her into her own car and took her to the local hospital. The hospital staff were horrified when they found that she was dangerously dehydrated. She died soon afterwards. Many people are concerned about this case; they wonder what has been written on the death certificate and if there will be an inquiry. She was a lady in her 50s.
I am pleased that the General Medical Council, in its submission to Sir Liam’s review, has identified as one of its priorities greater patient and public involvement and easier access for patients and employers for information about their doctors. I hope that voluntary organisations representing patients in different ways will be able to help the Government in their response to this. With so many upheavals in the National Health Service and many doctors becoming disheartened and complacent, there need to be clear pathways of communication so that vulnerable patients receive the correct treatment and care.
When I was a member of the family health service authority in North Yorkshire, we knew how difficult and slow the procedures were in dealing with doctors who could put patients in danger. Two particular cases come to mind—one concerns a serious drug addict and the other an alcoholic. There can be a serious problem of young doctors drinking too much and becoming alcoholic in later life. There is also the difficult situation when depression and mental illness present. I hope that the dangers of such risks will be taught to medical students, involving their patients and themselves. This is an important subject—the safety of patients should always come first.
My Lords, a patient of mine, a retired plumber in Deptford, once said to me, “I suppose doctors are like plumbers—a third good, a third average and a third you wouldn’t want anywhere near your drains”. We might argue about the percentages, but most doctors would acknowledge that there is some small truth in the wisdom of the plumber in Deptford.
The public want us to take action to address their concerns about the quality of healthcare. We should support any endeavour to improve lifetime professional practice. Liam Donaldson’s report achieves about the right balance between heavy-handed regulation and the developmental supportive approach, which may not be popular with all my colleagues. How the Government respond to that by putting in the bureaucratic processes and systems to support it, I am not sure has been fully worked out.
I declare an interest as chair of council at St George’s, University of London, which has a medical school. I want to comment on aspects of medical education. First, I strongly welcome the proposal that the GMC’s judicial hearings should accept the standard of proof of the civil courts; I welcome the flexible approach. As an NHS manager, I was obliged to welcome back many colleagues who I was pretty sure would get their comeuppance from the GMC, only to have the case fail as a result of inappropriate standard of proof. I was then faced with the horrible disciplinary dilemma of the doctor coming back to the trust without having a proper way to deal with it. The standard of proof is inappropriate. It is crucial that we create a system whereby the GMC system of regulation is more closely related to the local disciplinary processes and support systems within the trusts. Although the new affiliate system may become over-bureaucratised, it is, in principle, a good way to achieve that.
I support recommendation 23 that students should be registered with the GMC and the proposal for new GMC affiliates on the medical school staff to operate fitness to practise in parallel with the system for registered doctors. However, in view of the fact that expertise in these matters is not easy to come by, regional teams of affiliates with real experience of issues could build up expertise within medical schools. That might be preferable to multiple local affiliates.
These issues need sympathetic and careful handling. A first-year student’s problems and bad behaviour may be acceptable in the first year, but not in the final year. We need to develop sympathetic systems to look at fitness to practise in medical students. Overall, I welcome this report and look forward to the Government's further responses.
My Lords, we are in serious danger of living in a grossly over-regulated society. There is no doubt that the Government have inadvertently slipped into a situation of developing an almost intolerable quangocracy in the healthcare field. As the NHS Confederation said, 56 organisations capable of inspecting and assessing behaviour in the health service is far too many and has caused serious damage to professional morale. It has also taken away from the bedside and from patient care many people who could have been devoting their time much more effectively.
I speak as a former president of the General Medical Council. Many things in the CMO's report and in the White Paper that followed should be welcomed but, like others who have spoken, I recognise that the high-profile cases that have received so much attention in the media dented public confidence in the profession for some time. Nevertheless, as the noble Lord, Lord Turnberg, said so explicitly, survey after survey of patient attitudes has demonstrated that they hold the medical and nursing professions in the highest possible esteem and trust them implicitly.
I now turn to one or two points in the CMO's report and the White Paper. First, I wholly accept that the GMC in the future will be made up of at least equal numbers of lay and medical people. I also accept that members of the council should be appointed by an independent process which must be independent of government after full consultation with all interested parties. However, like others, I am concerned about the flexible standard of proof. There is a very real risk that with clever lawyers arguing cases, the flexible standard of proof on the balance of probabilities may lead to serious injustice.
Like the noble Lord, Lord Turnberg, I believe that the role of the colleges in revalidation and in licensure will be vital to the future of the medical profession. If they do that job properly in collaboration with the GMC, I see no need for the continuation of the National Clinical Assessment Authority, just as I am concerned that we have Big Brother in the council for the regulation of the health professions overseeing the activities of the regulatory authorities—Big Brother looking over the shoulder of Big Brother. I am not certain that that whole process should continue.
Turning to fitness to practise, it is absolutely clear that the GMC, in its recent activity, has separated the fitness to practise panels totally from membership of the council and that process should continue. It will give the council and the public confidence that doctors will be handled compassionately but at the same time firmly if they are not up to the standard that the health professions should require.
The time has come for the Government to undertake a period of calm reflection and consideration. The White Paper is like a curate's egg: it is very good in parts. But the Government must, in future consultation, carry responsible medical opinion with them in proceeding with this programme of reform.
My Lords, I, too, thank the noble Lord, Lord Turnberg, and declare that I am registered with the GMC. The foreword to Good Doctors, Safer Patients points out,
“that excellent health professionals far outnumber the few who let patients down substantially”.
How true that is. Reform must command the confidence of doctors and patients alike, so regulation must be truly independent of government and interested parties yet encompass the expertise to assess complex issues.
Revalidation processes must be fair and consistent throughout the UK because there are variations in clinical governance, structures and appraisal systems, particularly in primary care, and diverging health structures are increasingly emerging throughout the four parts of the UK. Revalidation must be flexible to cope with different work settings and career paths, including those outside ordinary clinical medicine.
The engagement of the royal colleges will be crucial in holding the confidence of the profession. The task of the GMC in co-ordinating all stages of medical education is a welcome step towards that. But can the Minister clarify when local NHS systems throughout the UK might be ready to deliver what will be required of them? As professional mobility increases, non-UK graduates who practise medicine here must be subject to the same level of regulatory scrutiny as UK graduates: the standard must be the same.
The disciplinary elements are of concern. If the standard of proof is to be applied flexibly, the profession will seek the assurance that the criminal level of proof will be required to strike a practitioner off the register, whereas the civil level of proof will be used to guide retraining.
My last point is about recorded concerns. The danger is that recorded concerns will push doctors into defensive practice. Sometimes, it is in the interest of the individual patient to take a risk. We already have clinical hesitation at times, driven by defensive practice. A vexatious complainant or another member of staff who bears a personal grudge may seize on an action that is a valid patient-orientated decision, but falls far outside the current guidelines or protocols. I fail to see how that doctor is guaranteed a fair hearing and without being confident of a fair hearing, human nature is to veer on the side of precaution, stick within the protocol and, in the process, deny a patient. Patients are complex individuals, but guidelines and protocols are written for an average and can be too rigid. A very specific example is that it is now almost impossible to get an epidural put into a patient in pain at home, whereas some years ago it was easy. It is such un-standard practice that anaesthetists will simply not undertake it.
Overall, the intention of the documentation is good, but the proposed system is complex and proposals such as affiliates may eventually work against some patients with complex and unusual needs.
My Lords, I, too, thank the noble Lord, Lord Turnberg, for this brief opportunity to address these issues.
My principal concern is that all the inquiry reports that have led to the report by the CMO have put forward many different proposals—some will please some professional bodies and others will not. The one thing that the Government have to do, at a time when healthcare provision is becoming increasingly disparate and diffused, is to provide a coherent basis for systems of quality assurance, evaluation and regulation that are consistent, robust and readily understood. The central problem is that the Government's response is being diffused over a number of different pieces of legislation and many different bodies, such as some of the new bodies that have been put forward. It is not clear where responsibility will lie for the oversight of consistency of standards.
Last year noble Lords spent some time looking in detail at the NHS redress system, yet the proposals in this report go in a completely different direction from the case that the Government were arguing on complaints in the NHS. In practice, that is bound to create a difficulty for practitioners and regulators.
The further set of proposals—and the Government’s response to what happened with Dame Janet Smith’s report—will be contained in the legislation on the review of the coroners’ courts and the coroners’ system. Let us remember that at the heart of the Shipman case was a doctor who was an excellent communicator and had enormous personal standing in his community—I know because friends of mine lived there—and that there was a failure in the notification system around death certificates. That is why so many murders went unreported for so long. It is tremendously important when dealing with bad and criminal practice that the proposals from the Government and the GMC are consistent with that, and that it is possible to see how those two systems work together to guarantee patient safety in the worst cases.
Running throughout these reports is a consistent argument that doctors need to be able to communicate better with patients. Bad doctors can sometimes communicate extremely well; that is how they get round the system. What is never made clear in any of these documents is what the nature of that communication should be and how patients will be enabled to spot bad practice. I simply draw to your Lordships’ attention that patients’ forums are yet again to be reorganised. They are an important mechanism by which the public gain the technical knowledge to make assessments of healthcare.
It is not that there are not good proposals in all of this or that there are proposals that we could not argue about individually; the big concern is that its parts may not add up to an adequate and consistent whole. That, I fear.
My Lords, this has been a good debate. In the time available it is not possible to do more than skim the surface of some very important issues, although the noble Lord, Lord Turnberg, managed to do more than that. Most of us, I think, will have read the Government’s White Paper with a mixture of relief, acceptance and questioning: relief, because of what it might have said, but did not, especially in relation to undergraduate medical education; acceptance, because on the whole it appears carefully thought through; and questioning, because of the detail around some of the proposals, which is quite simply absent.
The really positive part of the White Paper is what it says about professionalism. Some feel that we are looking at the demise of professional self-regulation; I am not so gloomy. Certainly, with a 50:50 split of professional to lay members on the council, doctors will no longer hold sway over decision-making but, there again, nor will anyone else. As with so much in life, we are dealing here with public perceptions. That, I am afraid, is the answer to the BMA, which has questioned why members need to be appointed rather than elected and why it is necessary to have a separate adjudication body, given that already council members no longer sit on panels.
It is rather like the situation regarding the Food Standards Agency 10 years ago. There was nothing at all wrong with how MAFF dealt with food safety, but public perceptions were otherwise, and in terms of commanding public confidence the FSA has largely been a success. Indeed, that is what we have to remember throughout this debate: the system of medical regulation, if it is to work, has to command the confidence not only of the profession but also of patients and the public. The key thing for the profession is that the GMC should be independent of government, be in charge of setting professional standards, and be in control of training. All those things are retained under these proposals. But we need to ask what is next.
There is a whole lot here which is still a complete mystery. With revalidation, how on Earth can it be made to work fairly between different types of practitioner in different settings? How bureaucratic will it be? The concept of GMC affiliates is completely untried. We are looking at giving a lot of responsibility to single individuals; how can we make sure that the system is fair? The civil standard of proof and the sliding scale sound easy when they are explained, but how will that actually work in fitness to practise cases in a way that is just to patients and doctors and consistent between comparable cases? What appeal or redress will there be? These are some of the issues that will need working through in the next few months. I hope that the Minister can shed some light on them today.
My Lords, this has been an excellent debate in which noble Lords have made some very telling points in a very limited time. I thank my noble friend Lord Turnberg and all other noble Lords who have spoken. I shall say more about how we intend to take the work forward, but this early opportunity for such an informed debate will be extremely valuable to me and my officials as we work through some of the details and answer some of the questions that noble Lords have raised tonight.
I commend the noble Lord, Lord Turnberg, for what he said about the common desire to raise standards and quality. I welcome his support for aspects of the White Paper and entirely endorse his comments and those of my noble friend Lady Jones of Whitchurch about the trust of patients in doctors. The noble Baroness, Lady O’Neill, is in the Chamber, although she has not spoken. When it comes to trust I think that one could do no better than to read her marvellous Reith lectures in that area. I have always taken that as a central foundation in the approach that we should take to the regulation of professionals.
We must also ensure, as the noble Earl, Lord Howe, said, that there is public confidence in the regulatory approach and the public can see that the regulatory approach is appropriate. The point that the noble Earl made about the Food Standards Agency is very telling; while there may be controversy about individual decisions made by the FSA from time to time, it has restored the public’s confidence in the regulatory approach to food. That is surely what we seek to do in taking forward the White Paper proposals.
I pay tribute to the current work of the regulatory bodies, on which my noble friend Lady Jones made some very important points. I am full of admiration for their work; I know the efforts that they put in to enhance credibility and the standard of their work and I pay tribute to the members of those regulatory bodies. I reiterate that point and respond particularly to the noble Earl, Lord Howe. I am very keen to ensure that healthcare professionals continue to be involved in professional regulation. I believe that over the past 100 to 150 years—and in the case of bodies such as the Royal College of Physicians and the Royal Colleges of surgeons, hundreds of years—they are the bodies that have been essentially responsible for upholding standards and enhancing the role of medical and health professionals.
I assure noble Lords that I want those professionals to continue to have ownership of that regulation in partnership with those members of the public who represent the public interest. But it is vital that we have the highest calibre of health professionals around the table of health regulators in future. Since it is my responsibility to take forward the White Paper, I fully intend to make sure that that happens.
I very much understand the comments of the noble Lord, Lord Walton, and my noble friend Lord Turnberg and their fears about over-regulation and bureaucracy. I, too, have read the report of the NHS Confederation and am ensuring that my officials work with that body so that we learn the lessons. I do not have time to talk about our more general proposals on regulation and pulling together some of the current regulators such as the Healthcare Commission and, in social care, the Mental Health Act Commission. I very much take the point that we must ensure that there is rigorous regulation for local NHS organisations which is not duplicated or overly bureaucratic. I am very much alive to the risks of bureaucracy in relation to the White Paper proposals; I shall want to prevent that. That is why the key reforms will be piloted in partnership with the professions and healthcare providers.
We want to ensure that proportionate action does not hamper patient care with heavy-handed bureaucratic regulation. I say to my noble friend that the regional medical regulation support team is not a formal regulatory function or a new layer of bureaucracy; it is about bringing together key individuals in the region concerned with maintaining high professional standards. It means that medical directors facing difficult cases—some medical directors may not have much experience with very difficult cases—can draw on local expertise to advise them. That is far from being bureaucratic; we hope that it will aid the speedy resolution of such cases.
The noble Baroness, Lady Murphy, mentioned the proportions “A third, a third, a third” in this context. That is a little harsh, although perhaps as politicians we would be prepared to accept that; I do not know. However, she is right: we want to get a balance between regulation, the development of the profession and standards. We want professional ownership in helping to develop those standards. That is what I want to see come out of this—the balance to which she referred.
The noble Baroness, Lady Barker, referred to disparate provision. I do not recognise that. If she is referring to a system where there are more diverse providers, then I recognise what she is saying. I agree with her that as we devolve more and more responsibility to a local level, both in providing and commissioning services, regulation is the method by which you ensure the consistency that she asked for. That is achieved partly through the professions’ individual regulatory bodies and partly through our proposals to have one regulator of services. I entirely agree with her about the end product of that regulatory action and that we need consistency of approach, not duplication and over bureaucracy. The noble Baroness raised the important issue of communication. She will know that in a few weeks’ time a local government Bill will arrive in your Lordships’ House. I understand that a number of noble Lords will take part in those discussions, which I very much welcome. She is right about communication. Dr Shipman was a much loved doctor, respected by his colleagues. Indeed, I believe that he was for some time secretary of the local medical committee. That shows some of the issues that have to be tackled. It is not just about the role of the GMC; it is about the role of a number of people and functions which we clearly need to improve. We will establish a national advisory group on regulation to help us tease out some of the answers to the questions noble Lords raised. It will be inclusive. I hope it will ensure that we get the proper balance that noble Lords require.
I understand the seriousness of the points that the noble Baroness, Lady Emerton, and the noble Lord, Lord Turnberg, made on the standard of proof, but moving to the civil standard of proof for all regulated bodies will ensure the consistency of approach that is required. I know that my noble friend Lord Turnberg is concerned about the use of the term “flexibility”, but the whole point about the civil standard of proof, which has worked perfectly satisfactorily in many cases, is that it can take account of the circumstances and gravity of individual cases. I am not aware that the regulatory bodies that use the civil standard have such problems. I suggest that there is an opportunity for all the regulatory bodies to come together to discuss this issue because there is current practice on the operation of the civil standard. Of course it must work fairly for professionals and patients. The noble Baroness, Lady Murphy, made very important points about the impact that the criminal standard has had on certain professionals who really ought not to be practising but, because of the standard of proof, have been allowed back into practice.
The noble Lord, Lord Patel, emphasised safety. As chair of the NPSA, he is in a very good position to do so. He emphasised the importance of revalidation, which allows health professionals to demonstrate that they remain up to date and fit to practise. That must be right. I very much sympathise with the relevant and important comments of the noble Baroness, Lady Murphy, on medical students. I am learning a lot about medical training as I consider the joys of the NMC. I say to the noble Lord, Lord Patel, that we shall look at how NHS appraisal systems can be developed to provide the GMC with the information that it requires.
My noble friend Lady Jones is right to say that the GMC has moved towards an internal separation of its investigation and adjudication functions. I pay tribute to the work that has been done and the impact it has had. But, rather as the noble Earl, Lord Howe, suggested, we feel that in order to meet some of the genuine criticisms that have been made, it is right that an independent body should adjudicate such matters. We are determined to follow that course.
The noble Lord, Lord Patel, raised some very interesting points on the creation of GMC affiliates, which I will ensure officials consider. We see great potential in affiliates. They will ensure that doctors working for the GMC in every part of the country are available to ensure that patients’ concerns are heard, investigated properly and tackled where necessary. For too long there has been a gap between what employers do locally to manage concerns about doctors and what the GMC can do nationally to address this. There is a great opportunity for early intervention. The benefit of early intervention is that in many cases problems can be nipped in the bud and dealt with rather than escalating and ending up at the GMC, perhaps many months later. Some cases ought to go to the GMC as quickly as possible but we know that in many cases the current system is simply too slow and inadequate to deal with problems when they first arise. Affiliates have a very important role to play.
The noble Baroness, Lady Emerton, raised an important point about forthcoming elections to some of the regulatory bodies. I understand the point and am considering what ought to happen in that case. There has been a warm welcome regarding the future appointment of members. I very much endorse the comments of the noble Lord, Lord Walton, about the need for independence in that process. I have no doubt that it is right that we have an independent process. Equally, we have to ensure that only the highest calibre people, whether professionals or lay people, are appointed. It is essential that the people around those regulatory tables command absolute confidence among professionals and the public.
I understand the issue that the noble Baroness, Lady Finlay, raised about recorded concerns. I should be very concerned about the practice of defensive medicine if what she mentioned were to happen, as clearly such practice is often not in the interests of the patients concerned. She has raised that point in previous debates on palliative care. I understand her points about fairness in the use of recorded concerns—getting the balance right between fairness to members of the public with legitimate concerns and fairness to the professional concerned. I shall ensure that her comments are fully considered in this work.
The noble Lord, Lord Colwyn, suggested four principles of regulation, with which I very much agree, and said that he did not want to see it fragmented. I also agree with him on that, although the argument for the independence of adjudication is very well made. I very much endorse ensuring consistency not just within a regulatory body but between regulatory bodies. I take his point about the importance of language. Clearly, we have to consider the issues of self-employed people. I gently point out to noble Lords that we are governed by European legislation in this area. I will not pretend that this is easy, but I accept that it is a very important challenge, which we must face up to.
I noted the comments about the Council for Healthcare Regulatory Excellence. It is appropriate for me to pay tribute to Jane Wesson, the chair of CHRE, who announced her resignation a few days ago. I do not want this to be a Big Brother agency; I do not want it to duplicate the work of the regulatory bodies. I want it to be there to provide strategic leadership and advice and to work well with the regulatory bodies.
This has been an excellent debate, and I thank all noble Lords for their very important points. I have no doubt that we will have a further opportunity to debate the issues, and I assure noble Lords that their comments will be fully taken into account in this work.