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Health and Social Care Bill

My Lords, I start by congratulating the Minister on his introduction of this very important, complex Bill with such economy of words and such clarity. I intend to speak only to Part 2 in relation to regulation. From these Benches, subject to some tuning of Part 2, we propose to give it our general support. My father’s grave has two non-biographical words on it—family doctor. Those words seemed to us to combine a description of the work he did with the respect in which he was rightly held by the community in which he worked. But of course he flourished at a time when, incredibly, there were more doctors than administrators in the health service in the county borough in which he worked—an idea so fanciful now as to seem completely ridiculous. His general expression of surprise that I was capable of anything useful turned to a look of pained consternation when I told him a few months before his death that I had been appointed as a lay member of the General Medical Council. I remained on the General Medical Council as a lay member for 10 years. I shared that experience with my noble friend Baroness Neuberger, who was there at the same time as me, as well as the noble Baroness, Lady Emerton—although we were not there at the same time—and the noble Lord, Lord Christopher, with whom I served. I think we all found it an interesting and educational experience. I observed from that experience that professional self-regulation was actually not a soft option for the doctors who appeared before the General Medical Council’s disciplinary committees. I often had to restrain the doctors on the committee from passing the most vicious sanctions on doctors who, it seemed to me, had simply made mistakes. That brings me to mistakes. I do not think anybody should assume that mistakes are over. The old system made mistakes and I am afraid the new system will make mistakes. Mistakes, and openly discussing the effect of those mistakes, are part of the dynamics, I fear, of the open government to which we aspire. However, there always was a problem with the old General Medical Council, which had such distinguished chairmen as the noble Lord, Lord Walton, and others who sit in this House. The major problem was its size and its ridiculous diversity but the problem from the professional self-regulation viewpoint was its credibility to members of the public. Those of us who have regarded professional self-regulation as actually quite a good system, if properly administered, have had to recognise that its time came and its time has now gone. As Lady Justice Smith in her wonderful report on Dr Shipman recognised, an independent body is now needed, and I congratulate the General Medical Council, and particularly its president, Sir Graeme Catto, on approaching these changes so realistically, objectively and constructively. The Office of the Health Professions Adjudicator is an appropriate response to meeting aspirations and the need for public confidence. However, I invite the Minister to reflect that the new body should retain some of the strengths of the old General Medical Council—for example, the strength of having real expert doctors serving on it and not merely as expert witnesses. To those of us who have sat as jurors judging the facts of cases, the presence of people who really understood clinical treatment was invaluable. Furthermore, the privy council system that appoints lay members should not simply go for a cross-section of the lay community. It is right that they should be lay members but it is important that they should have a range of experience which will contribute to a reasonably expert debate on the issues being faced by the committees when they are judging the behaviour of doctors. As to the standard of proof, I disagree strongly with the British Medical Association. The civil standard of proof now applies across the professional regulation world. It is more flexible than it sounds. The more serious the allegation, the higher the civil standard of proof required. It provides the judicial flexibility which enables tribunals to consider cases in proportion to the seriousness of the issues presented. The Bill provides for legally qualified chairs. I do not object to the use of legally qualified chairs for some tribunals for some cases. As a lawyer I would not be expected to and I do not. However, in some cases of real medical complexity, the use of a medically qualified chair with an appropriately qualified legal assessor may provide a better dynamic for the fair decision of the case than simply having a legally qualified chair. It sounds superficially attractive but it certainly is not a cure-all for all cases. I am sure that there will be some cases in which it would be appropriate to have a legally qualified chair—for example, a case involving very complex issues of law. In those cases, however, it is important that the legal assessor and the legally qualified chair should not come into conflict. I suggest that in those cases where there is a legally qualified chair, there is no need to have a legal assessor as well, and there is a consequent saving of money in that approach. My final point about the new structure for professional regulation relates to case management. Building the structures is only part of the picture. Those of us who are experienced, for example, in fraud cases in the criminal courts and those who are involved in terrorism cases in the criminal courts and the more complex cases know that case management is as important as the structure. Whatever rules are promulgated, they should ensure that the chair, if necessary with appropriate legal advice, should be able to avoid the overformalisation of hearings. There should be power within the tribunal itself to request and even demand evidence which will help to resolve the issues, thus not merely relying on types of evidence which the adversaries choose to present. Preliminary proceedings should seek to resolve simple cases by the simplest of procedures and preparatory hearings should be aimed at shortening proceedings, not lengthening them. In the end, this requires resources. For cases of professional discipline to be resolved fairly, there has to be a well-resourced prosecution, as it were. The presentation of the case should be on a basis that serves the consumer and is fair to, for example, a doctor if he is in the ““dock””. There also have to be resources for the tribunal to be able to pay for the time of those involved in the adjudication without placing them under undue pressure. Those who remember it will recall vividly the pressure placed on the system by the Bristol case. It was intolerable for everyone involved. The lesson from that must not be forgotten.