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Health: Doctors and Patients

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 from where I am coming 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, and 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 re-validation 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.