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Health and Social Care Bill

This is a terribly difficult issue and I was interested in the questions that my noble friend and the noble Baroness, Lady Finlay, asked. We need to tease this out. I have been thinking about my work for the Royal College of Physicians on medical professionalism. After we completed our work, we held 10 roadshows around the country, which were supported by the King’s Fund, entitled, ““Do doctors have a future?””. Not surprisingly, they attracted a wide range of clinicians and managers, as well as doctors, of course. The CMO’s report, Good Doctors, Safer Patients, had just been published. We were debating a wide range of issues, particularly whether we should retain the criminal standard of proof or change it to the civil standard. That debate was before the publication of the Bill and the suggestion that there should be a new body to hear cases, the Office of the Health Professions Adjudicator, was not in contention; that part of the issue was not discussed. I remember some heated discussions at the roadshows by members of the medical profession who said that they felt that the GMC’s sanctions were so devastating to an individual’s livelihood and their reputation that the criminal standard should of course continue. However, others, particularly NHS employers, said to us that they felt that this high hurdle could lead to a situation in which a doctor survived a challenge and remained on the register but was not trusted to look after patients safely. As I understand it—I am sure that the noble Baroness, Lady Finlay, can put me right—that was the view taken by Dame Janet Smith in her fifth report on the Shipman inquiry. Of course it is true that other professions have disciplinary bodies that are not a criminal court. In this case, there will be no criminal consequences following an appearance before the Office of the Health Professions Adjudicator, nor will the individual face a potential loss of liberty, as they would in a criminal case. Although the standard of proof is notionally lower, it has long been accepted that, the more serious the allegation, the more onerous the consequences and the greater the weight of evidence needs to be before any findings can be made, even on the balance of probabilities. That is what we are dealing with—the balance of probabilities. When a person’s livelihood and reputation are at risk, low-quality or insubstantial evidence will simply not do; evidence has to be of the highest order. In reality, that may mean requiring such good-quality evidence that the panel is satisfied that it may in effect achieve the criminal standard of proof. The important thing in all this, however, is that the principle is different. The great strength of the civil standard of proof, which, as my noble friend said, already governs the majority of the health regulators, is that it enables flexibility in imposing sanctions. There will be an option to erase doctors from the register in worse cases, but in lesser cases conditions may be attached. That is a point made by the noble Baroness, Lady Finlay. For instance, if a surgeon’s practice in operating keyhole surgery is dangerous, that person could continue as a surgeon but could be prevented from carrying out that particular procedure. He might have to consent to retraining or supervision before continuing, but he will keep his livelihood and it will certainly be safer for patients that he has retrained or been under supervision. As so many of the other professions, such as teachers or the police, work to the civil standard, which is also used in all family courts, I do not see why doctors should be any different, as the noble Baroness, Lady Tonge, said. Rather, I think that it would be much better for doctors and much better for patients this way. I look forward to the Minister’s comments in reply, because there are clearly questions to be answered, but my overall feeling is that we should go for this new measure.