Graeme Catto " That is another fine mess you have got us into Finlay"Here we see the GMC top comedy duo, Finlay Scott and Graeme Catto persuading Parliament that all is well. What Parliament have not done is interviewed those who have been subject to GMC complaints.
From Parliament. The United Kingdom Parliament
United Kingdom Parliament
General Committee Debates
Health and Social Care Bill
Health and Social Care Bill
The Committee consisted of the following Members:
Chairmen: † Derek Conway, Mr. Jim Hood
† Bradshaw, Mr. Ben (Minister of State, Department of Health)
† Browning, Angela (Tiverton and Honiton) (Con)
† Burden, Richard (Birmingham, Northfield) (Lab)
† Cooper, Rosie (West Lancashire) (Lab)
† Crabb, Mr. Stephen (Preseli Pembrokeshire) (Con)
† Gidley, Sandra (Romsey) (LD)
† Hesford, Stephen (Wirral, West) (Lab)
† Hopkins, Kelvin (Luton, North) (Lab)
† Jenkins, Mr. Brian (Tamworth) (Lab)
Kumar, Dr. Ashok (Middlesbrough, South and East Cleveland) (Lab)
† McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
† Mallaber, Judy (Amber Valley) (Lab)
† Milton, Anne (Guildford) (Con)
† Moffatt, Laura (Crawley) (Lab)
† Mulholland, Greg (Leeds, North-West) (LD)
† O'Brien, Mr. Stephen (Eddisbury) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
John Benger, Celia Blacklock, Committee Clerks
† attended the Committee
Witnesses
Lady Justice Smith, Judicial Office
Professor Sir Graeme Catto, President, General Medical Council
Findlay Scott, Chief Executive, General Medical Council
Dr. Hamish Meldrum, Chairman of the Council, British Medical Association
Dr. Laurence Buckman, Chairman of the GP Committee, British Medical Association
Frances Blunden, Principal Policy Advisor (Health), Which?
Helen McCallum, Director of Policy, Which?
Councillor David Rogers, Chair, Local Government Association Community Well Being Board, Local Government Association
Anne Williams, President, the Association of Directors of Adult Social Services, Local Government Association
Column number: 35
Public Bill Committee
Tuesday 8 January 2008
(Afternoon)
[Derek Conway in the Chair]
Health and Social Care Bill
Further written evidence to be reported to the House
H&SC 17 Mental Health Act Commission
4 pm
The Chairman: It is now four o’clock and we have a fairly tight timetable to get through. Obviously, Jimmy was chairing the Committee this morning. Before we begin, does anyone have any preliminary points to make?
Angela Browning (Tiverton and Honiton) (Con): How long before our proceedings today will be available to read?
The Chairman: I am advised that it should be within two days.
Angela Browning: So will we be able to read and quote from today’s proceedings during Thursday’s debate?
The Chairman: I am advised that you should be able to do so.
Lady Justice Smith, thank you very much for coming to the Committee to answer my colleagues’ questions. As you know, we are on a fairly tight time scale and our session must end at 4.40 pm, whoever is speaking, and whatever stage they are at in their sentence.
Lady Justice Smith: Yes.
The Chairman: Forgive our rudeness if that occurs. Before I invite my colleagues to put any questions, perhaps you would tell the Committee a little about yourself and say a few words. We shall then move straight to questions.
Lady Justice Smith: Briefly, my job at the moment is Lady Justice of Appeal, a judge of the Court of Appeal. I have been doing that since November 2002. Before that I was a High Court judge in the Queen’s bench division, doing a mixed bag of crime and civil work. I went off to do the Shipman inquiry in January 2001. It took me four years, I am afraid—twice as long as the Lord Chancellor warned me that it would, but there it is. That is the basis of such expertise as I have on these matters.
I must warn you, before you start questioning me, that since I returned to my day job in January 2005, it has not really been possible for me to keep up as well as I would like with day-to-day developments in medical regulation. Of course, I have a maternal interest in the
Column number: 36
recommendations that I made and their progress, or lack of it, through legislation, but you will have to forgive me if I am not aware of everything that has been going on since January 2005. I do not have access, now, to the kind of materials that I had during the inquiry.
The Chairman: Thank you for that. My colleagues understand that there are certain questions that you cannot answer because of your position. If, at any stage, you feel that the questions are not appropriate, feel free to say.
Lady Justice Smith: I will say so, but generally any difficulty will arise out of individual cases. I cannot imagine that you are going to ask me about those.
Q 6161 Sandra Gidley (Romsey) (LD): The Bill makes a number of changes to the regulation of health care professionals, particularly in medicine. Are the changes proposed in the Bill broadly in line with your findings and recommendations?
Lady Justice Smith: Yes, broadly, but this is very much a bare bones Bill. A huge amount of detail will be left for delegated legislation. One of my difficulties at the moment is seeing exactly how it will work because so much is left for secondary legislation. I welcome the creation of an independent adjudicator and the change to the standard of proof, which were recommendations of mine. I am particularly concerned that I do not understand how re-validation will work. The Bill gives only the vaguest of clues about how it will work, and I am a little worried about that.
As far as the independent adjudicator is concerned, I know that the General Medical Council has put in a memorandum, which it kindly showed me in advance, expressing concerns about the independence of the adjudicator, and I share those concerns. It is vital that an independent adjudicator should be independent of Government as well as the GMC. The purpose of my recommendation was that we should have someone adjudicating who is independent of the GMC because it cannot properly be investigator, prosecutor and judge in the same causes. I was concerned about its human rights compliance. That has been accepted, and we will now have an independent adjudicator, but it should be independent of Government as well as the GMC.
Q 62 Sandra Gidley: Thank you for that. I believe that you also made some recommendations about the proportion of lay members. Will you elaborate on them? Did they just seem like a good idea, or did you have any evidence to back them up?
Lady Justice Smith: I did not have much evidence about what the proportions should be. I felt that the proportions were wrong in the GMC at the time and that lay members were not carrying sufficient influence. I recognised that as the GMC was organised at that time—and I think that this will change—it needed quite a lot of medical members to carry out particular functions that required professional qualifications. I did not want to denude it by suggesting that the number of medical members should be reduced too drastically. Besides, it might surprise you to know that I did not want to frighten the horses too much either. I am very content with the proposal here that there
Column number: 37
should be equal numbers. I also see that the nature of the GMC is to change so that it becomes less of a council and more of a board. How that will work and whether it is a good idea, I just do not know. I have no view on that.
Q 63 Sandra Gidley: So was the motivation behind that coming more from a public perception angle?
Lady Justice Smith: Not just public perception. I wanted to enhance the influence of the lay members within the GMC. I thought that under the existing arrangements they were too much the underdogs.
Q 64 Sandra Gidley: Okay. I have a final question. Would you like to see any other changes to the Bill? Are we missing an opportunity here?
Lady Justice Smith: There is one matter, which you might feel is quite small. It relates to the fitness to practise panels under clause 93, subsection (2) of which states:
“A fitness to practise panel is to consist of...a chair selected from the lay members list or the professionally qualified members list”.
I recommended that adjudication panels should be chaired by legally qualified people. I explained a number of reasons why I made that recommendation. The GMC has never done it. It does not think that it is necessary but, of course, we are not talking about the GMC. I had understood that the chief medical officer was more or less in agreement with my proposal, although I noticed that, in his review of my report, he just said that there should be an independent adjudicator and that panels should be staffed appropriately with those who are medically and legally qualified and lay people. I understood from that that he wanted some legal expertise on the adjudication panels, which is what I had wanted.
Now I see that the chair must be selected from the lay members or the professionally qualified members. I then tried to find out the meaning of a professionally qualified member, and the definition section under clause 93(4) states that a
“‘professionally qualified members list’ means the list of persons eligible to serve as professionally qualified members provided for by section 94(1)(b)”.
Section 94(1)(b) states that they are
“persons eligible to serve as professionally qualified members”.
Around we go in a circle.
I suspect that the provision means medically qualified people, but that is not made clear. I would like it to be made clear that there can be legally qualified people on the panels. As the way in which the panels are to work will be decided by the Office of the Health Professions Adjudicator, not by Parliament—reference can be made to an example, under clause 94(6), of the delegated legislation rules that are to be made by OHPA—I should like the OHPA at least to have the option of having legally qualified chairs. If you want me to give reasons why I think that that is a good idea, I shall do so, but they are set out in my report.
I believe in horses for courses and in professional expertise being matched to the nature of the tasks in hand. Chairing a disciplinary tribunal is a job for a legally qualified person, not a lay person. Legally qualified people who appear in front of such tribunals are capable of running rings round the tribunal if no
Column number: 38
one on the panel is legally qualified. The proceedings would take a lot longer than they needed to if there was not a legally qualified chair. You would achieve a much higher standard of reasoned decision if you had a legally qualified chair because writing a judgment, which is what such a decision is, is a job that requires professional expertise.
The Chairman: Let us stick with this matter for a moment. I bring in the Minister.
Q 65 The Minister of State, Department of Health (Mr. Ben Bradshaw): May I return to something that you said earlier, Lady Justice Smith, about the status of the independent adjudicator? You kindly acknowledged that your recommendation stressed the influence of independence from the GMC, but you now say that you have some sympathy with the position of the GMC, which is arguing that it should not be the proposed model that is an Executive, non-departmental public body along the lines of the Independent Police Complaints Commission. I wondered what your reasons were for that and whether you had an alternative model in mind that would satisfy the need for democratic and public accountability.
Lady Justice Smith: May I suggest that I leave that issue for the GMC? It has written a memorandum, which you might not have had the chance to read yet. Representatives from the GMC are here—there they are—and they will be speaking next. It is a point that they feel strongly about. I confess that the lack of independence of Government had not jumped out and hit me between the eyes. It plainly has now and having read the memorandum, I am sympathetic to that point. I would rather just leave it at that.
4.15 pm
Q 66 Mr. Stephen O'Brien (Eddisbury) (Con): Slightly moving on, thank you very much for your observations on clauses 93 and 94. I will be very surprised if there is not a Government amendment—if not, I assure you that there will be another amendment from somebody else—that will help to give some clarification.
The regulations that have just been sent to us as members of the Committee who support this include the phrase “in the wake of a number of high profile inquiries”. Clearly that refers to what was I think in the end six inquiries into doctors who had harmed their patients. The Office of the Health Professions Adjudicator is being created as a new body able to make adjudications and decisions. Are you happy with that declaration of provenance?
Lady Justice Smith: Yes. It was very much a recommendation of mine. As I have said, I was concerned that the GMC’s arrangements were not compliant with the Human Rights Act 1998. The GMC thought that they were; I thought that they were not.
Q 67 Mr. O'Brien: That is clear, thank you. It strikes us that there will be an opportunity to discuss the element of independence that has been focused on in some of the questions and your replies. That will probably take place early on Thursday afternoon in the amendment that is tabled to clause 2(4), which in relation to the Bill performing its functions of looking
Column number: 39
at the commission, would insert what the Secretary of State may “direct” instead of what the Secretary of State may “advise”. That may be a turning point in deciding who we look to for independence in that area. There will be an opportunity during the discussions to focus on that.
Lady Justice Smith: May I intervene for a moment? I notice that the chairman—or chair as I must call it nowadays—of the adjudicatory body, the OHPA, must be legally qualified. Where do I find that provision? I think that it is under schedule 6, but I have lost the piece of paper on which I had made a note of it. To my mind that gives some reassurance. Here it is: schedule 6(4) states
“The OHPA is to consist of the following members-
(a) a chair appointed by the Privy Council”
Then schedule 6(6) states
“A person may be appointed as the chair only if the person as well as satisfying any requirements...has a 10 year general qualification”
under the Courts and Legal Services Act 1990. Broadly speaking, that means part or full-time judicial capacity. That does indicate that there should be a measure of independence. It is other aspects that the GMC is particularly concerned about.
Q 68 Mr. O'Brien: That is helpful. Thank you very much indeed. On the role of the OHPA, in the various recommendations that you made— and there were many—are you concerned about how the appeal process might operate?
Lady Justice Smith: The appeal from the OHPA?
Mr. O'Brien: Indeed.
Lady Justice Smith: There will, of course, be two different sorts of appeals from it in that some regulators will not be within the adjudication body for the time being, although I understand that it is the intention that they should join eventually. I do not think that that should be a problem. I have not spotted the provision—it may be that it is not there, but I think that the GMC would be shouting if it was not—that states that the GMC is entitled to appeal from a decision. Is there such a provision?
Q 69 Mr. O'Brien: Yes, there is as I read it. Although I am waiting to scrutinise the Bill.
Lady Justice Smith: I have not managed to take on board every single provision. Provided the GMC has a right of appeal, which presumably replaces the old Council for Healthcare Regulatory Excellence provision under section 29, the same process would continue for the other bodies that are outside the adjudicator. The CHRE will appeal from the regulatory bodies who are doing their own thing. The GMC, as a party, will have a right of appeal from the independent adjudicator—that seems all right to me—and the doctor will too. Are you worried about that, because that seemed to be all right?
Q 70 Mr. O'Brien: I do not wish to get into how we will need to scrutinise the Bill in later stages because we are taking your evidence rather than mine, but I am concerned that when the powers of adjudication come
Column number: 40
into being, we will be dealing with a person’s livelihood as well as the overriding concern of patient care and safety. We need to strike that balance. Someone else will ask you about the burden of proof—
Lady Justice Smith: Standard of proof.
Mr. O'Brien: Sorry, standard of proof.
Lady Justice Smith: That is all right. There has never been an argument about the burden of proof.
Q 71 Mr. O'Brien: Looking at the standard of proof, I see that it is to be a graded approach depending on the outcome, and I have difficulty with that. How can you know what standard of proof you need until you have heard what is at stake and the evidence? Often, the standard that you would expect to apply would probably have to be set at the beginning. Otherwise, everyone would be moving at the same time, and I am struggling with that.
Lady Justice Smith: Have we done with the problem of appeals?
Mr. O'Brien: Yes, I have moved on.
Lady Justice Smith: I am not worried, which is to say that I am happy, with the proposed appeal arrangements. On the standard of proof, I recommended that we move to the civil standard because, essentially, we are talking about a protective rather than criminal jurisdiction. I know that the consequence could be loss of livelihood or serious damage to it, but my view, which seems to have been accepted, is that adequate protection could be given to a doctor within the framework using a civil burden or standard of proof. I am pleased that that has been proposed and I imagine that it will go through.
How the measure works in practice will require considerable training. That is one of the reasons—I am glad that you mentioned it and that I remembered—for having a legally qualified chairman. The chairman will understand how it works. If you tell a lay person how to apply the sliding or variable standard of proof, they might find themselves in some difficulty, but a lawyer would not. You do not want a legal treatise now on how it works do you?
Q 72 Mr. O'Brien: Well, it is not in the Bill. I do not want to over-pursue my line, but that is not in the Bill—
Lady Justice Smith: No, it is just says the civil standard.
Q 73 Mr. O'Brien: Exactly, so things will have to be developed by experience and understanding.
Lady Justice Smith: Well, the civil standard of proof is part of the common law of England, and there are judicial decisions that explain it. Those must be incorporated into how the adjudicatory body—
Q 74 Mr. O'Brien: Does the variable standard have a precedent in civil law?
Lady Justice Smith: Yes it does—many. It applies particularly in fraud cases, for example. The notion is that if you make a serious allegation against someone,
Column number: 41
you need cogent evidence before you find it proved. If you make an allegation of negligence, it is not so serious. You could be 51 per cent. satisfied that x happened rather than y, and that would be enough. However, if you are thinking whether someone has deliberately told lies in an attempt to defraud x, you would need to be a little bit more than 51 per cent. sure. I do not want to say 60 or 70 per cent., but there is a higher standard of proof, which is what this is all about.
It applies also in cases in which someone is, for example, accused of murder but has not been convicted and a civil action is brought for wrongful death. In such a case, the judge would apply a higher standard of proof than he or she would when considering an allegation of negligence. For example, if there were allegations that a doctor had indecently assaulted patients, you would require fairly cogent evidence before you would convict him.
The Chairman: Angela Browning, I was going to come to you next but we have moved into an area on which Anne Milton would like to ask some questions, so it makes more sense if we pursue the standard of proof issue.
Q 75 Anne Milton (Guildford) (Con): Thank you, Chairman. To some extent, you have covered what I was going to ask. For clarity, you recommended and approved of the move to a single standard of proof, and you would like to see legally qualified chairs?
Lady Justice Smith: Yes.
Q 76 Anne Milton: If there were not legally qualified chairs, would you then have your doubts about the single standard of proof?
Lady Justice Smith: No, I think it is right anyway,
Q 77 Anne Milton: Irrespectively?
Lady Justice Smith: I think it is right anyway, but I tagged that on as one of the additional reasons why I want a legally qualified chair. There are many reasons why I think that we should have a legally qualified chair, the main one being that to do the job well requires legal expertise, for the reasons that I explained a moment ago. An understanding of the sliding standard, the variable civil standard, is just one little example of the expertise that would be brought to the task by a legally qualified chair.
Q 78 Anne Milton: There is also the competence of the profession.
Lady Justice Smith: Of which profession?
Q 79 Anne Milton: The medical profession. There would be more competence in the system with a legally qualified person.
Lady Justice Smith: I would have thought so.
Anne Milton: I would have thought so, but I dare say we will have an opportunity to ask them.
Lady Justice Smith: All our tribunals have legally qualified chairs. It is quite bizarre to me that somebody
Column number: 42
should struggle with the job that is really a professional legal job, in important circumstances, such as these disciplinary proceedings, adjudication panels are.
Anne Milton: Thank you very much.
Q 80 Angela Browning: I will be brief because you have covered a lot of what I was going to ask you. During your initial remarks you said you felt that the OHPA should be independent of Government and you mentioned that the GMC had provided you with the briefing that it has also sent to us.
Lady Justice Smith: You have it there.
Q 81 Angela Browning: I do. Looking through the case that the GMC makes, it says that it believes that the Bill extends the ambit of the state quite considerably. It prays in aid in its document, for example, the requirement to keep accounts as specified by the Secretary of State.
Lady Justice Smith: I do not feel strongly about that.
Q 82 Angela Browning: Perhaps not so much. I understand that one of the GMC’s grievances is that this has not gone out to proper consultation and that the measures were not recommended in your report or other similar reports. Would a consultation resolve that problem and make the case?
Lady Justice Smith: It might. I did not make any recommendation about independence of Government because that was not what my mind was focused on; I was focused only on independence of the GMC. However it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important. As I say, the fact that you are apparently intending to have a judicial figure as the chairman of the adjudicatory body gives me some confidence. What one wants is a degree of judicial independence.
Angela Browning: Thank you.
The Chairman: Would any other Members like to ask a question?
Q 83 Mr. Bradshaw: As we have a few minutes left, the following question might be helpful for me and other members of the Committee. The Bill deals with a number of other issues. I think that I am right in saying that if they were not direct recommendations that you made, they were things that you would approve of: lay parity; responsible officers; appointments not elections.
4.30 pm
Lady Justice Smith: Let us talk about responsible officers for a minute. I really find it difficult to know how responsible officers are going to work and what role they will play in revalidation. I do not get that
Column number: 43
from this Bill. If you have read my revalidation chapter in the fifth report—it is long and I would not criticise you for a moment if you have not—you will know that I was very concerned that the revalidation process should be clear and understood, that it should be summative and a proper test, and that it should not just involve shuffling pieces of paper around and rubber-stamping them, which is what I was afraid that it would be.
I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers; I see that they can be appointed by employers and that it is envisaged that medical directors of trusts will also be responsible officers and that they will have some role—I do not know what—in revalidation. I am really unhappy about that for several reasons. First of all, I do not like the idea of a medical director, who already has a lot of jobs, having to take on responsibility for revalidation as well as all his other jobs. I think that that is too much. There is a real tension between, on the one hand, an employer’s desire to keep all of his employees in post, revalidated and fully qualified, and, on the other hand, the possible need to refuse to revalidate somebody, in which case their services might be lost entirely, diminished or put on hold, from which problems might arise. I am unhappy about that. I cannot tell how it will work, but it looks to me that it might be like that.
I do not know what is happening about GMC affiliates, which are not mentioned in the Bill but, according to the chief medical officer’s review, are the responsibility of the GMC. I liked the CMO’s proposals for revalidation. He picked up on my ideas, ran with them and took them further. I was delighted with that. I was fed up with waiting for him to produce the review, but when he did, I thought that it was well worth waiting for. However, I cannot see the extent to which his proposals are implemented in this Bill, which bothers me.
Q 84 Mr. Bradshaw: Finally, what is your view on appointments vis-Ã -vis elections?
Lady Justice Smith: Appointments?
Mr. Bradshaw: To the professional bodies
Lady Justice Smith: I am opposed to elections. I made that plain. I had very good material before me on how the GMC system was working, and it is not right that a member should have a constituency.
The Chairman: Are there any other questions?
Q 85 Mr. O'Brien: Just one. I am looking now at the part of the fifth report where you highlighted the role of the Healthcare Commission in complaints handling. Are you concerned that the private sector patients in the NHS and self-funders in the social care sector do not have adequate access to complaints procedures, and that this legislation removes the Healthcare Commission’s complaints-handling remit?
Lady Justice Smith: I do not know what will happen about complaints handling. When I produced my report on complaints, new draft rules were on foot. The Department rang me up and said, “Would you like us to put them on hold for a few weeks while you produce
Column number: 44
your report?” I said, “That seems like a good idea, because I am going to make some recommendations on that.” Ever since then, there have been no amendments to the complaints-handling arrangements. At the time of my report, the Healthcare Commission was just in the throes of setting up its complaints-handling set-up. From what I heard about it, and from the personnel involved whom I saw and heard evidence from, I was concerned that it was not going to work very well. I think that that has been borne out by experience—I think that it has been a disaster. It has a huge backlog and there is great dissatisfaction among patient representative groups about how it is working. The Department must go back to square one and sort out a proper second tier. I do not know how it is going to be done in the Bill. I do not know whether any proposals are made in it—there are none that I have seen.
Q 86 Mr. O'Brien: Well, we are still looking.
Lady Justice Smith: Right. Well, it is urgent, because health care complaints are in a mess and causing great dissatisfaction. You can go back and examine some of the things that I said, but at the time when I wrote I was content to give the Healthcare Commission’s attempts a whirl. They were new, and it appeared that they ought to be able to do the job properly, but they have not.
The Chairman: May I thank you for coming before the Committee this afternoon and giving evidence? It is much appreciated. Thank you very much for your time.
We were due to start this next section at 4.40 pm, so we are well in hand. Before we do that, Anne Milton, do you want to make an observation?
Anne Milton: Yes, just to declare that my husband is a qualified doctor and a public health physician, and therefore—[Interruption.] I am sorry?
Sandra Gidley: Sorry, I was being flippant. I said, “Is there such a thing as an unqualified one?”
The Chairman: Let us have this properly for the record.
Anne Milton: For the record, my husband is a qualified medical doctor and a public health physician, and therefore his job might be implicated by this legislation.
The Chairman: Thank you for clearing that up; it will be duly recorded.
Although it is not exactly 4.40 pm, we can move on if our witnesses and the Committee are ready. I think that we shall do so to make some progress. Thank you for coming before us. Would you first like to introduce yourselves to the Committee? My colleagues have some questions that they would like to put to you when you have had your say.
Sir Graeme Catto: Thank you very much for allowing us to join you. I am Graeme Catto, I am a physician, and I have been president of the General Medical Council since 2002. As you will be aware, our primary purpose is patient protection, so we welcome many of the clauses of the Bill.
Column number: 45
Findlay Scott: Good afternoon. I am Findlay Scott, I am the chief executive of the GMC, and I have been there since 1994.
The Chairman: Is there anything that you would like to say to the Committee before we put questions to you?
Sir Graeme Catto: Just that, because our primary purpose is patient protection, we welcome many of the clauses and many of the issues raised in the Bill. We have sent round a note, which I understand most of you have received, indicating one area of concern, but it is one area. We have very few other areas of real concern to bring to your attention. The area that concerns us is the independence of the independent adjudicator.
As you probably know, all our arguments have been advanced on the understanding that independence is important. It is important for the council itself—that is why we have argued for equal numbers of lay and professional people on it, so that we are seen to be independent of the profession and any vested interest. At present, adjudication is undertaken by the General Medical Council, which itself is quite independent of the monopoly employer. We are facing a situation where there are clear links between the new adjudicator and the Department of Health, and that gives us cause for some concern.
The Chairman: Mr. Scott?
Findlay Scott: No, thank you.
The Chairman: All right. Laura, I wonder whether I can ask you to lead the batting for the Committee.
Q 87 Laura Moffatt (Crawley) (Lab): Professor Sir Graeme, you kindly gave us a briefing note, and it was very helpful to us that you clearly said that the general direction of travel is exactly what you would like to see. You touched on your area of concern. If the Bill were to change, in what direction would you like it to change, and what specific measures would you put in place to promote so-called independence, about which you are concerned?
Sir Graeme Catto: Within that memo, we have mentioned some issues that might help to address the problems that we identify. The least important are the financial issues, which we discuss in general terms. Our concern starts from the difference between what was proposed in the White Paper and the Bill. It is not clear to us how that important definition of independence will be taken forward, given the new remit of the independent adjudicator. Some issues can be addressed by securing from the Department and in the Bill a guarantee of independence about the status of the adjudicator. That might be combined with a report to Parliament directly, rather than through the Secretary of State for Health.
We also want to touch on the operational effectiveness issues that relate to the independent adjudicator. Finally, we want to consider effectiveness and value-for-money issues. There may be some questions about other models that might be considered—other models that would provide the safeguards we seek. I am happy to discuss those with you, too.
Column number: 46
Laura Moffatt: Thank you.
Q 88 Mr. Stephen Crabb (Preseli Pembrokeshire) (Con): On the office of the health professions adjudicator, perhaps we can take a step backwards. Will you tell the Committee why we need a new and separate body to take over from yourselves?
Sir Graeme Catto: Lady Justice Smith explained it reasonably well in the previous sitting. The issue is as much about perception as it is about reality. If you consider the effectiveness of the General Medical Council and the way in which we have organised cases in the past, we have done pretty well. The proportion of decisions that are opened up to review, go through either the High Court or the Court of Appeal and are reversed is very small. On effectiveness, it is hard to see how any new body would do better, but there is the difficulty of being perceived to be judge and jury—of being partly comprised of doctors, but making decisions about doctors. We have said in the past, and it is still our position, that the factual case has not been made, but if that is the view of Parliament or the Government, we are very happy to work with you to see how best we can produce an effective new adjudicator.
Q 89 Mr. Crabb: So, just to be clear, the problem of perception notwithstanding, you do not believe that there are any substantive deficiencies or problems with your processes?
Sir Graeme Catto: No, Lady Justice Smith mentioned the Human Rights Act and European legislation. There are differing legal views on it, and not everyone would agree that it creates a problem, so from our perspective, the issue is about perception rather than factual necessity.
Findlay Scott: If I may just deal with the civil rights issue, the European convention on human rights point has been tested in the courts, and our arrangements were found to be compliant. Lady Justice Smith’s concern in her report was that at some point in the future, when the requirements become more rigorous, the arrangements might be found to be non-compliant. Currently, however, they are undoubtedly compliant.
Q 90 Angela Browning: You said that apart from the briefing that you sent us, you are generally content with the Bill. In clause 92, the GMC will still be able to publish guidance telling the OHPA what sanctions to impose on professionals found unfit to practise, but it will lose responsibility for conducting the work itself. I assume from what you have said that you are happy, because that is a classic example of judge and jury. Do you agree?
Sir Graeme Catto: I am not sure that it is a classic example, but we have received assurances from the Minister that our standards will apply. We set the standards for the medical profession in the United Kingdom, and if the regulator is to be responsible for the integrity of the register, it is important that all doctors abide by those standards. We have assurances that our standards and indicative sanctions on the panels will apply. As I understand it, the concept is to remove adjudication away from the GMC to an independent adjudicator, but everything else remains more or less the same.
Column number: 47
Q 91 Angela Browning: May I follow up with a supplementary question? Can you update us as to the GMC’s position on the question of doctors who are deemed to be fit to practise, but who offer themselves as expert witnesses in disciplines in which they clearly do not have the sort of experience that one would expect from somebody who puts themselves forward in that position? How does the GMC address that matter?
4.45 pm
Sir Graeme Catto: Let me move from the specific to the general to begin with. Our guidance states clearly that all doctors should work within their competence. That applies to doctors in any situation, including working as an expert witness. We have issued further guidance for doctors who work as expert witnesses, and Findlay may wish to speak on that.
Findlay Scott: Yes, I would like to add to that. In 2006, there was a case at the Court of Appeal testing the proposition advanced by a judge in the High Court which stated that expert witnesses should be outside the reach of the regulator. We resisted that strongly and we won in the Court of Appeal. Our position is clear. As Sir Graeme says, doctors should practise only within their competence. If they do not do so—and that includes acting as an expert witness when they are not an expert—then we will not hesitate to take action.
Angela Browning: Thank you.
Q 92 Mr. O'Brien: We kicked off with Laura Moffatt moving into the question of independence, and we have heard from Lady Justice Smith and yourselves. You talked about seeking to secure a guarantee of independence for the Office of the Health Professionals Adjudicator, and to ensure that it delivers value for money. As we scrutinise the Bill, it is important for us to understand how it will impact on specific amendments in order to establish that. General information, unfortunately, has now got to reach the detail, and there are a number of amendments tabled that we will look at in order to tease this out.
One of the areas that I feel very un-briefed on, as we move toward a line-by-line discussion of the legislation on Thursday afternoon, is the argument about independence. I would like to know what point the GMC has reached, either with the Department or in its own understanding in discussions, in securing the OHPA’s operational effectiveness. What will be the financial arrangements for the cost of the OHPA? Will they eventually fall back as a burden on the profession? Will they be met from central funds? Where is the understanding? As an Opposition Member who has looked at this carefully, I am at the moment feeling somewhat unsighted, so I would grateful if you helped me out.
Sir Graeme Catto: There are two issues which are separate but linked. One is the question of independence, and the other is that of value for money and how we will deal with that. If we take the independence issue first: we have had helpful discussions with the Department over many months, but comparatively late in the day, towards the end of November, came the suggestion that the independent adjudicator might be an executive non-Departmental
Column number: 48
public body. I am no expert, but I understand that that leads inexorably back to the Secretary of State’s being responsible for the organisation and, in effect, being the sponsoring officer for that body.
Q 93 Mr. O'Brien: It is a distinct thing from an arm’s length body from our point of view.
Sir Graeme Catto: Yes, but nevertheless, in legislative terms the Secretary of State holds overall governance of the non-departmental public bodies within his or her empire.
Mr. O'Brien: Absolutely.
Sir Graeme Catto: So the question of independence from a monopoly employer looms large with us.
If we return to the question of money and who is going to pay for this, the General Medical Council’s view—and my view—has been that if you are going to run a professional organisation for a major profession, you need to take responsibility for those people who fail to abide by the appropriate standards. Therefore, to a large extent, the costs should fall back on the profession. Having said that, it cannot mean a blank cheque; we must have some understanding of where the additional costs will arise. If you are going to set up a new organisation, there will clearly be additional costs at the beginning.
We are close to an agreement with the Department that those additional costs—accommodation and all the other facilities that would be required for a new organisation—will not fall directly back on to the profession. They will not fall on to the General Medical Council; we simply pass our costs on to the individual doctors. However, there are a number of areas to be resolved in setting that up, and there are technical matters such as whether or not value added tax will be added. It is entirely possible that there could be an extra 17.5 per cent. simply to set this up, without getting any gain from it whatsoever. There are quite a few issues yet to be resolved. The short answer is that we are still in discussion with the Department and the Minister.
Q 94 Mr. O'Brien: I would like to follow that up, briefly; perhaps the Minister will speak about this, as well. From my point of view, therefore, trying to understand our role in scrutinising the Bill, it seems a bit unsatisfactory that there are unresolved matters. As you rightly said, the point that I raised is both separate and linked, and a lot of what we will find ourselves discussing may centre around what we truly mean by establishing the principle, as well as the practice, of independence. Unless those unresolved issues are resolved before we get to that point in the Bill, we will have a cart-and-horse situation. Do you feel the same, or do you think that I am perhaps being a little too pedantic?
Sir Graeme Catto: No, from my perspective it has been unfortunate that the question of independence came up so late in the day and without our understanding what was happening. The financial issues are important, but probably less so. That is my feeling.
Findlay Scott: There are issues of substance and of perception. I have no doubt that Ministers on the Floor of the House will offer assurances about their desire not to interfere in day-to-day decisions, and that may
Column number: 49
deal satisfactorily with the substance. However, we remain concerned that the major issue is one of perception. The fact is that under the Cabinet Office guidance, as I understand it, an NDPB is clearly defined as being a governmental body rather than a non-governmental body. There has been no role for a governmental body in the regulation of the medical profession for 150 years. Therefore, this is something that cannot be lightly ignored as we move into a new arrangement. Notwithstanding the practical assurances that can be given, there will be a significant shift in perception.
Q 95 Mr. O'Brien: That is why I used the expression “arm’s length”. What one would want to achieve as we go through the detail is possibly to move away from a non-departmental body, however it is defined, to an arm’s length body. That should be set in the Bill as a matter of principle rather than a question of perception, which I think will be rather important.
Sir Graeme Catto: If I may come back on that, somebody asked Lady Justice Smith at some point if she might be able to suggest other models that might link in, and the Minister mentioned the Independent Police Complaints Commission. In a sense, that is not a very fair analogy, because the IPCC does not make the final decisions. If issues come out of the IPCC, they end up being determined by the courts—a truly independent arrangement—whereas this is the adjudicator, an apparently independent adjudicator, on our part.
There are quite a few other organisations that would pretty much fit the remit. One, of course, is the Solicitors Disciplinary Tribunal itself, which is quite independent. Members are appointed by senior judges, but the tribunal remains completely independent of the Government. There are different models that could be used. It is not as if we are seeking to establish something that is completely de novo. Models exist for this situation.
Q 96 Mr. Bradshaw: Sir Graeme has partly answered the question that I was going to begin with—that is, what exactly is not independent enough about an NDPB? I was going to use the IPCC model, but there are others. I think that members of the Committee need a little more clarity about exactly which alternative model you prefer, or whether you would simply be looking for special guarantees about independence within an NDPB model.
There are a couple of follow-on questions from that. Is it not the case that the more distant and the more independent, the less power there is for any financial control or control of costs, which I know is of great concern to the GMC? Also, how does one ensure democratic—that is, public—accountability the more distant an independent body is from any governmental oversight or control?
Findlay Scott: In a sense, the easy answer to the Minister’s first question is that we would like a body rather like the GMC to run adjudication. It is a statutory body; it is not a non-departmental public body. The White Paper published in February 2007 very helpfully proposed that the GMC should be accountable to Parliament. There has never been any suggestion that we should be accountable to or within
Column number: 50
the ambit of the Secretary of State, as an NDPB would be. It must be possible to create an independent statutory body of the GMC’s kind, while retaini
