General Medical Council (Constitution) Order 2008

19:25:00

Baroness Finlay of Llandaff
rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 6 October, be annulled (SI 2008/2554).

The noble Baroness said: My Lords, noble Lords may ask why I have put down this Prayer against a change that is done and dusted. The GMC board is already slimmed down, appointments are made, and the regulation that sets out a proposed constitution for the General Medical Council is already in action. Earlier, we debated an order on specialist registration, which I supported.

In essence, the order provides details of the composition of the council. From 1 January 2009, the GMC will have a revised constitution consisting of 24 members; 12 lay and 12 professional. All will be appointed by the Privy Council, but in practice the function will be delegated to the Appointments Commission. This signals the end of self-regulation. The noble Baroness, Lady Gardner of Parkes, who apologises that she is unable to be in her place tonight, sent out a clarion call during the proceedings on the Health and Social Care Bill, when she tabled an amendment on the General Dental Council. Medicine failed to heed her warnings at the time. That is precisely why I have laid this Prayer.

This change is hugely controversial within the medical profession. The president of the Royal College of Surgeons is shocked by the full implications of the order. The president of the Royal College of Physicians feels that the profession acquiesced too easily in the wake of Shipman. Of course, we all know that none of the changes will ever detect another Shipman. The changes have all been put in place, and the list of appointees has been on the GMC website since October. Now, we are effectively rubber stamping the details. I am not convinced that this is the right way to approach something that will fundamentally alter the relationship of the profession with its regulatory body.

Let me briefly run through the background. The Government announced their intention to change the way in which doctors and other healthcare professionals in the UK are regulated in February 2007 in the White Paper Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century. Following the White Paper, the Health and Social Care Bill was introduced on 15 November 2007, and it included provisions to amend the legislation governing doctors and the other health regulatory bodies. The Bill gained Royal Assent on 21 July.

Concern was expressed at the time by parts of the medical profession that the proposed changes, taken as a whole, would lead to a loss of professionally-led medical regulation. That has two adverse consequences for patient care. It potentially compromises doctors in their role of speaking out for their patients, and it furthers risk-averse behaviour, which promotes defensive practice. Defensive practice is not necessarily practice that is in the best interests of the patient, but it is defensive for the doctor.

The NHS is a state-owned monopoly employer. With an appointed regulatory body, doctors could feel that their professionalism is compromised. Clinical judgment requires a synthesis of medical knowledge with the specific issues for an individual patient, aiming to achieve the best treatment for the individual patient. If professionalism is diminished and the profession is demoralised, there are consequent risks to patient care. The vast majority of doctors perform well and safely and acknowledge that it is imperative that patients are protected from the small number of cases of unsafe doctors. Therefore, any measures which promote excellence in medical practice and help to reduce instances of poor standards, negligence, or, sadly, criminality, among doctors must be supported.

I acknowledge that some improvements to the regulation of the medical profession were needed. However, during the passage of the then Health and Social Care Bill, the British Medical Association voiced doctors’ concerns that any reform must be workable in practice and maintain a system in which both the public and doctors can have confidence that fairness and justice will be delivered.

The greatest protection for the public is to have a system where doctors feel able to admit to faults or failings in themselves and colleagues, confident in the knowledge that these will be dealt with in a fair, sensitive and supportive manner. The trouble is that the profession, especially the juniors, feels demoralised. Some juniors have described the GMC to me as being just there to “catch you out however hard you try to do your best”.

Over recent years, the GMC has taken action to amend its constitution, reducing the size of the council. Lay members have developed a much greater involvement in its activities and the proportion of lay members has increased, improving the GMC’s accountability to the public and helping the council operate more strategically.

Reducing the size of the council to 24 certainly makes it more manageable but only 12 of its members are medical. This means that it is no longer a council for professionally led regulation, which has undermined the profession’s confidence in its regulator. To help retain the profession’s confidence in the regulator, should not the council be chaired by a doctor? If the chair is lay, at least it should be mandatory that the vice-chair is medical—a model to be found in the Bar Standards Board. Why have such provisions not been incorporated in the order? Furthermore, why do the medical members of the council have to be appointed by the Privy Council? Why are they not elected by the medical profession from a long list produced by the Appointments Commission? Such a process might ensure the credibility of the regulator with the profession that it regulates.

To be quorate, only 14 members need to be present. There is no stipulation that at least seven of them must be medical. Why not? The council could have 12 lay and two tame medics there and could theoretically make momentous decisions that will affect the viability of the professionals. I am sure the Minister will try to reassure me about the type of decision that they will make, but in reality one may hope for the best but must plan for the worst.

I am not simply resisting change for the sake of it, but want to record the current demoralisation of the profession. Medical practice is becoming increasingly complex, with increasingly complex science underpinning best practice. These complexities must be understood by the regulator.

The Minister has the opportunity tonight to put some assurances on the record because they are important for the profession as a whole. In particular, I hope that she will be able to assure me that the changes to the constitution will not lead to undue Department of Health or government influence over the way in which the GMC works.

I would also appreciate an assurance that doctors will not be compromised in their ability to use their clinical independence to get the best treatment for their individual patients, even if it means speaking out, taking risks and working outside the guidelines or even sometimes beyond the boundaries of a protocol.

As Dr Buckman, the chairman of the BMA's council working party on the GMC, said:

“These far reaching changes have effectively amounted to the end of professionally led regulation. The main objectives of any regulatory system are to protect patients and manage doctors' performance. Doctors want confidence in their regulator … this confidence will be undermined".
 

I look forward to hearing the Minister's reply on these issues and beg to move.

Moved, That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 6 October, be annulled (SI 2008/2554).—(Baroness Finlay of Llandaff.)

Lord McColl of Dulwich
My Lords, I suspect that few people really know how the medical profession has tried to regulate itself over the years. One of the best ways is to meet once a week to discuss all complications and deaths. These meetings are extremely useful. The key is to have a chairman who is senior and when some junior member of the staff confesses to some complication, the senior guy says that we all make mistakes and then recounts his own mistakes. People are then disarmed and compelled to be honest. That is the way to get to the bottom of what is going on. It becomes rather like the general confession and just as therapeutic.

In a debate in your Lordships’ House, there was a discussion about some mistakes there had been in the Department of Health—I am sure very few. I suggested to the noble Lord, Lord Darzi, that, as we have both conducted these meetings, perhaps the Department of Health might like to have a weekly meeting to discuss all their mistakes of the previous week—no deaths of course. That idea went down like a lead balloon.

I agree with the noble Baroness on this business of the chairman. It looks like he could be lay or medical, but if he is the former, the balance is shifted and is no longer 50:50. The Government might suggest to the new GMC that there be a vice-chairman. If the chairman is lay, the vice-chairman could be medical and that would balance things up. I gather that is what obtains with the barristers. The chairman of their governing committee is lay, but they always have a professional barrister vice-chair. That might be one way out of it.

Regarding the quorum, I think it is 14, which means that there could be just two doctors present and 12 lay people. That might not be a very satisfactory state of affairs. After all, medicine is becoming much more complicated and technical. One does need at least 50 per cent of the people there knowing something about the subject in some detail. I wonder whether the Government would suggest to the GMC or find some arrangement whereby that situation could be corrected. We are not trying to scupper the whole thing at this stage, but it would be well worth while if those few recommendations could be implemented.

Baroness Barker
My Lords, I thank the noble Baroness, Lady Finlay, for introducing her Motion. It gives me a chance to come out. I belong to a minority in the population. The vast majority of people take one look at a governing document or instrument and their eyes glaze over. I have an affliction. I am in that small minority who look at a governing document and their eyes light up. It is all to do with my professional background, working with voluntary organisations. I was absolutely delighted to sit and look at this. I have to say that I listened with great care to the arguments made by both the noble Baroness and the noble Lord, Lord McColl. It would be tempting to go back through arguments which have raged in this House since the Shipman case and through the then Health and Social Care Bill. The time has now come to accept that those arguments have been had and decisions have been taken and it is time to move on. Central to the reform of the GMC is that it should become an altogether different body, which will, I hope, continue to command the respect of professionals but will be held in greater respect by lay members of the public. That would enable it to move forward in a world in which its job of regulating doctors and medical practice is changing, as has been noted.

In that spirit I want to make a couple of points and ask a couple of questions. First, as regards the size of the GMC council, it is now accepted practice in the business world and that of charities that if you put more than 20 people into a room, you will never get sensible discussion or sensible decision-making. Therefore, reducing the size of the council is regarded—there is evidence to support this view—as an aid to better decision-making. However, we should remember that we are talking about a model of accountability. The GMC council’s primary purpose is to be an accountable body. How it goes about fulfilling its duties in respect of governance and oversight is not a matter that should be addressed in the document we are discussing because there is an infinite variety of ways in which any professional body—of which the GMC is one—can do that. Those matters are not set out in the document, nor confined to the parameters set out in it. My understanding is that above and beyond these legal minima, the GMC conducts a great deal of its business at its own discretion. We should not become confused about those two matters. I believe that the bulk of the work will be carried out not by the council but rather by professional bodies. However, the council remains the accountable body.

In the presence of esteemed people such as the noble Baroness, Lady Finlay, and the noble Lord, Lord McColl, I realise that it is audacious to say that doctors do not always chair meetings brilliantly. We are talking about a key role in terms of making a body work. Perhaps a doctor should undertake this role. However, some eminent lay people who undertake roles in professional bodies are extremely well thought of and command the respect of the people whom they oversee. I think that it would be in the GMC’s interest to have the flexibility to appoint such people if it needed to do so. I hope that the Minister will confirm that the GMC council would not be prevented from establishing its own standing orders to enable it to set out in greater detail ways in which it might conduct its business.

I hope that the Minister will comment on my next point to put it beyond doubt. I think that, taken together, Articles 5(m) and (n) and 6(e)—the anorak in me is coming out—are intended to ensure that no registrant should ever have been subject to challenge anywhere in the world as regards their fitness to practise, and if that were not the case they would not be able to be a member of the council. It would be extraordinarily helpful if she would confirm that that is the intent of those sub-paragraphs.

The GMC is about to enter a new era in its history. None of us yet knows how successful that will be. Parliament and the profession will have to watch that matter with great care. It will be interesting to see how it is evaluated, by whom and when. However, as far as this goes as a very basic founding document, it should serve that process reasonably well.

19:45:00

Lord Rea
My Lords, I apologise to my noble friend Lady Finlay as the dinner-hour business started very promptly this evening and I missed the first few minutes of her speech. However, I know the gist of her thinking and have some sympathy with it because this order appears at least to remove the long-treasured self-regulation of the medical profession. I shall be very interested to hear my noble friend’s response. I also support the point made by my noble surgical friend Lord McColl about the deputy chairman. However, we had plenty of opportunity to debate the legislation on which this order is based, the Health and Social Care Act and the miscellaneous amendments to the HCAP order—I summarise that as it is too long to spell out. However, I think that we have reached a good solution. We should remember that the chairman of the General Medical Council, Sir Graeme Catto, has been very much involved in the processes which have led to this legislation. I respect him greatly and he is held in high regard by the profession. Although we may have lost the control seat, as a profession we may gain from our disciplinary body being seen to be broadly spread and representing the whole community.

Baroness Butler-Sloss
My Lords, I apologise for not being present at the beginning of the debate as I had intended. I support what the noble Lord, Lord McColl, said. Over the past three years, the Bar Standards Board has worked effectively with a lay chairman but with a QC as its vice-chairman. Having a lay chairman has proved extremely useful for many bodies. However, that needs to be balanced by having sufficient specialised members on the board about which we are speaking. I happen to be chairman of the panel that appoints Queen’s Counsel, but only because the lay chairman had to retire unexpectedly. In future there will be a lay chairman of the Queen’s Counsel panel, but its members comprise more lawyers than lay men. Having a deputy chairman who is a member of the medical profession would be a very useful adjunct to this new General Medical Council.

Baroness Thornton
My Lords, I thank the noble Baroness, Lady Finlay, for introducing this debate on the merits of the General Medical Council (Constitution) Order which was laid before the House in October this year.

The order is part of a programme of reform and modernisation of the regulation of the healthcare professions, which the Government are taking forward in consultation with the health professions regulators. Noble Lords will recall previous debates in which this programme, and especially the governance arrangements for the regulatory bodies, have been discussed.

We all agree that the healthcare professions regulators must be independent and impartial in their actions if they are to protect the public interest, enhance professional standards, and deal with poor performance effectively. Like the noble Baroness, Lady Barker, I do not intend to rehearse the arguments that we have heard previously because the House is very familiar with them. However, there has been a perception that regulators have not always acted in patients’ best interests. Their perceived dependence on, or attachment to, vested interests has weakened or threatened confidence in their actions. That is the background to this programme of reform.

There is widespread agreement that the composition of regulatory body councils is central to both perception and effective regulation. Thus, the White Paper Trust, Assurance and Safety set out a substantial programme of reform to the system for the regulation of healthcare professionals. This programme was debated in some detail during the passage of the Health and Social Care Act and the Health Care and Associated Professions (Miscellaneous Amendments) Order, which was made in July. The noble Baroness correctly raised many questions during the Bill’s passage through your Lordships’ House.

Following the legislation’s introduction, the Government have been working closely with the General Medical Council to develop the proposed constitution set out in the order currently before your Lordships’ House. The proposals have the clear support of the GMC. The terms of office of the elected members of the current council are all due to expire at the end of December and all involved parties are now working towards the new council starting on 1 January. In many ways, the noble Baroness, Lady Barker, was right: this is a different body and it ushers in a new era.

In its Proposals on Healthcare Professional Regulation (published in November 2006—prior to the Government’s White Paper—the GMC emphasised that the new regime had to command the confidence and support of all the main groups with an interest in patient safety and quality of healthcare. It proposed a smaller council with a balanced composition, which would reflect patients and the public, doctors, the NHS and other healthcare providers, the medical schools and medical royal colleges.

The GMC’s proposals included equal numbers of medical and lay council members, and acknowledged that routes to council membership had to command confidence through a fair, independent and transparent appointment process that was free from government influence.

I turn to specific points raised by noble Lords. The noble Baroness, Lady Finlay, and my noble friend Lord Rea raised the issue of the end of professional self-regulation. It seems that professional self-regulation is not based solely on the presence of a professional majority on the council. Registrants will continue to be actively involved in many levels of the processes of professional regulation through the approval of education and training, the continuing development of standards and the involvement of independent practitioners on fitness to practise panels.

Healthcare professionals need to acknowledge that regulation involves a partnership between the professions and public to ensure that all concerns have an equal opportunity to be heard.

The noble Baroness, Lady Finlay, and the noble Lord, Lord McColl, raised the issue of clinical independence. I assure the House that it is not the Government’s intention to inhibit clinical judgments in any way. In terms of the GMC it will be essential that the council is able to draw on clinical expertise at all levels of its organisational processes, including, for example, through the three new education boards. Medical expertise does not have to be drawn from the council.

I turn to the appointments of the chair, which the noble Baroness, Lady Finlay, and the noble Lord, Lord McColl, raised. The Government have agreed with GMC proposals that the chair of the council should be elected by the council from among the council members. There is therefore no requirement in the constitution that the chair must be a medical practitioner. It is open for the council to choose the most appropriate member to take up the post of chair. Transitional arrangements have been made in the constitution order to provide for the existing chair to continue in post for a period of six months to provide a period of continuity during the first few months of the new council.

Likewise, there are no deputising arrangements for the chair and no standing vice-chair. That is deliberately there to ensure that there is no factionalism. We want this body to act as a strategic body for the medical profession. It is important from the start that factionalism does not emerge, which is about medical and non-medical members of the council.

The noble Baroness asked why not allow registrants to elect the medical members of the council from a long list drawn up by the Appointments Commission. The requirement to have a fully appointed council is set out in the medical Act. It was inserted by a Section 60 order made in June this year. This constitution order cannot override the requirements in that medical Act. The move to have a fully appointed council was a major White Paper commitment and part of the reforms that the GMC brought forward.

The noble Baroness asked whether the Department of Health would be able to exercise undue influence over the way in which the GMC works. I see no reason why that would be the case. In practice, the oversight role in relation to health professional regulators is being taken on more and more by the CHRE. Appointments to the council are being carried out by the Appointments Commission, which appoints against specific criteria agreed with the regulators.

The key principle of the White Paper, Trust, Assurance and Safety, is that the councils should be clearly independent of all sectorial interests, including the Government. The noble Baroness raised an issue about appointments being made before legislation was laid in Parliament. The noble Baroness will be aware that current membership of the General Medical Council will expire on 31 December 2008. In view of the short timescale, the Appointments Commission in consultation with the GMC began the recruitment process in order to be in a position to make appointments as soon as the constitutional order was made and laid before Parliament.

The Appointments Commission received over 160 applications from medical professions. The process of sifting and interviewing candidates prior to the completion of the consultation process of the draft order did not pre-empt the outcome of the consultation process. Following the interview process, the Appointments Commission had a pool of appropriately qualified lay and professional candidates from whom it could draw without prejudice to the final decisions about the size and composition of the council. The constitution order was made by the Privy Council on 29 September and laid before Parliament on 6 October. Final appointments to the GMC were confirmed by the Appointments Commission on 15 October.

The issue of a quorum was raised by the noble Baroness and the noble Lord, Lord McColl. In 2007, Niall Dickson, the chairman of the King’s Fund, chaired the national working group which had the objective of enhancing confidence in the health professionals’ regulatory bodies. It considered a range of issues relating to the constitution and membership of regulatory body councils. The report recommended that no group should have guaranteed places on the council and that members should include registrants who should only be appointed because of their experience, knowledge and judgment. The Government believe that it is the role of council members to set the overall strategy for the organisation and hold its executive to account rather than to represent any particular interest or point of view on the council. The White Paper and the national working group chaired by Niall Dickson recommended that there should be no guaranteed places for any particular group on the council. Our view is that this principle should also be applied to the quorum for the council. In other words, if one accepts that all council members are on the council because of their skills and abilities in directing an organisation, rather than because they represent a specific interest group, there is no need to ensure that there is a balance of lay and professional members present on every occasion. The constitution order does not therefore specify a minimum number of registrants or lay participants. A quorum of 14 reflects best practice in ensuring that the council can continue to operate should a number of its members be unable to attend a meeting.

The noble Baroness, Lady Barker, raised the issue of people who have been subject to fitness-to-practise action being able to serve on the GMC. This is not automatic. The Appointments Commission is barred from appointing anyone whose appointment could be liable to undermine public confidence in the profession, but we decided that the bar should not be an automatic bar because some candidates might have faced sanctions from autocratic regimes elsewhere in the world.

The noble Baroness, Lady Barker, also asked whether it would prevent the GMC from having standing orders. That is not the case. It has the powers under Schedule 1(e) of the medical Act to have its own standing orders and we assume that it will go ahead and do so in due course.

I thank my noble friend Lord Rea for his supporting remarks, particularly those concerning Sir Graeme Catto. I endorse them wholeheartedly. I hope that I have addressed the questions raised by the noble and learned Baroness, Lady Butler-Sloss, about the vice-chair.

20:00:00

In conclusion, the Government continue to be committed to improving patients’ safety and enhancing professional standards, and we will continue to work with the GMC and other regulators to that end. Change is always difficult and I appreciate that members of the GMC have made an enormous contribution over many years, but that particular role is coming to an end. I am confident that they will continue to find active and important roles in their professional regulation. I note that the GMC has written to a number of noble Lords calling on them to reject this Motion. It has pointed out that if Parliament were to reject this order it would not merely put a brake on the GMC’s transition to a new constitution, but the council itself would cease to exist at the end of the year.

I hope that the noble Baroness feels that I have gone some way to meeting her concerns and will be able to withdraw the Motion.

Baroness Finlay of Llandaff
My Lords, I am grateful to all noble Lords who have spoken, and am particularly grateful to the Minister for her remarks. I appreciate the comment from my noble and learned friend Lady Butler-Sloss about the vice-chair. I am concerned about the need to have a vice chairman in the event of the chairman suddenly becoming ill or being unable to undertake a duty, just as it is good practice in committee to have a vice-chairman who is well briefed and able to stand in.

I completely agree with the noble Baroness, Lady Barker, that a smaller council is manageable and can take sensible decisions and that previously it was too large. I reassure the House that I am not worried about those who are leaving their place on the GMC. Change will probably be a very good thing, and I embrace it. I also endorse the words of the noble Lord, Lord Rea, that Sir Graeme Catto has done an outstanding job in regaining a lot of confidence among the public who lost confidence in the medical profession because of events in Bristol, the Shipman affair, and so on. I hope that we are starting off afresh and well.

I echo the sentiments of the noble Lord, Lord McColl, in relation to the quorum and wonder whether it might be wise for the GMC in its standing orders initially to suggest that to be quorate a third of its members must be medical, or to have something to address the balance to give the medical profession the message that it is not being isolated. This is not about factionalism—not at all; it is about expertise, and making sure that there is the right amount of expertise in the room. I am grateful to the Minister whose words were reassuring. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Lord Tunnicliffe
My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 pm.

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

[The Sitting was suspended from 8.03 to 8.25 pm.]