| Previous Section | Index | Home Page |
21 Jun 2007 : Column 528WH—continued
“The GMC should reopen its debate about the standard of proof to be applied by”
“panels. It should consider introducing a rule that the civil standard of proof should apply unless the doctor faces an allegation of misconduct which also amounts to a serious criminal offence”—
I emphasise “serious criminal offence”. It goes on to say:
“In that limited class of case, the criminal standard of proof may well be appropriate.”
The Government’s response was:
“The Government has decided that all health professions regulators should follow the civil standard of proof. It should be flexibly applied to take into account the circumstances and gravity of individual cases.”
The civil standard of proof is not the balance of probabilities, but a sliding scale that can go beyond reasonable doubt in a criminal case.
There is a misunderstanding in the recommendation that only when the charge is of a serious criminal offence should the criminal standard of proof apply. I think—I cannot be certain because the Joint Committee on Human Rights, on which I sit, has not looked into this, but no doubt it will—that there is a real risk of non-compliance with the Human Rights Act 1998 if something equivalent to a criminal charge is to be tested on less than the criminal standard of proof. That does not mean that the wording is not right, because the civil standard of proof can come up to that level, but it is a matter of concern. If we want to have the profession’s confidence without the perception of a witch hunt, we must deal with that, and there is no doubt that it would have interfered with any GMC approach to cases such as Shipman or anything close to it.
Mr. Lansley: I intend to speak about this matter, but I want to be clear about the point that the hon. Gentleman is making. He was talking about circumstances that amount to the equivalent of a serious criminal charge, but the essence, as I understand it, of the application of the criminal standard of proof beyond a reasonable doubt is not simply that a criminal charge has been brought but that it entails criminal penalties. To put it another way, there is a difference of substance between, on the one hand, the risk of being deprived of one’s livelihood as a result of adjudication and, on the other, the risk of being deprived of one’s liberty by a criminal court. That distinction must be retained.
Dr. Harris: The hon. Gentleman makes a fair point, but there are two ways of looking at the matter. Loss of livelihood, particularly for someone who has spent years training, should probably not apply, but that would happen if someone were struck off on the balance of probabilities. That is not proportionate or right, and I would be interested to know the Minister’s view. I do not understand why or on what basis the higher standard of proof should apply to a serious criminal offence, and I should like to know who should define what is serious on that scale, even if my point is not accepted that the loss of livelihood is such a serious penalty that it would be unreasonable to apply it to cases determined on the balance of probabilities?
Mr. Lansley: I am not competent to explain what “serious” means in this context, so I shall not even attempt to do so. However, the hon. Gentleman has slightly slipped back into saying that it is a case either of “beyond reasonable doubt” or “on the balance of probabilities”. The whole point is that deprivation of livelihood, particularly in the case of a doctor, is a very serious penalty, and I do not dispute that for a moment. However, on adjudication by the GMC, the penalties are not confined to being struck off the register. Depending on the proof of misconduct and the severity of the misconduct, various penalties are possible. That is the whole point of a sliding standard.
Dr. Harris: I understand that, and I think the hon. Gentleman is making the point that it is perhaps the severity of the penalty rather than the severity of the charge that dictates the matter. However, the inquiry’s recommendations do not mention the severity of the penalty, so perhaps it is an unfortunate misunderstanding on my part, or ambiguity in some of the language in the report and in the Government’s response.
Andy Burnham: Could I inject a note of caution, as it is important not to lose sight of the bigger picture? The proposal was recommended by both Dame Janet Smith and the chief medical officer to address the hesitancy or reluctance to bring cases because of the difficulty of proving them. My advice from the Department is that there is clear legal authority so that in cases of sufficient gravity—that might be a matter for debate or clarification—the flexibly applied civil standard is virtually indistinguishable from the criminal standard. I also point out that six of the health regulatory bodies already use the civil standard of proof, including the General Dental Council.
Dr. Harris: I am grateful for the Minister’s explanation. I want to reinforce my point about the motivation for the Minister’s proposed changes, many of which we support. The fact is that public trust of doctors is still high, so it is important not to have the wrong motive. It is better to make policies to protect patients and to improve the practice of medicine, rather than to require doctors to restore a loss of public confidence, because the latter would mean that we, as parliamentarians and legislators, were passing our responsibilities on to the media, who create—sometimes rightly, sometimes wrongly—concerns and worries, and we would be legislating on the basis of opinion polls, which is something that is notoriously difficult.
I am reassured by much of what the Minister said: there is good evidence that each proposal will improve the safety of patients and reduce the risk of something like Shipman ever happening again, and the measure is not, even in part, an exercise to restore an alleged loss of trust in the medical profession. If it were, we might overreact or react wrongly, and that would not be of service to the public or the profession.
I want to put on record my admiration for Dame Janet Smith’s work in her detailed reports. She went a long way in the scope of her recommendations, which show a huge amount of work and application. She has made sure that public policy-makers are not in a position to forget the views that she expressed. That is laudable, but as parliamentarians we must ensure that we do not—we all risk doing this, and I may have done so myself—simply make up our minds on the basis of the thinking of the person who ran the inquiry, whether it is the Alder Hey or Bristol inquiry. We have a responsibility to look at the generalities, perhaps even more so than individuals appointed to do a particular job. They are experts, and we should value their views and recommendations, but we should not abrogate or delegate our responsibilities to them.
The hon. Member for Calder Valley said that the general public are keen to see the reforms implemented. I would agree if she meant that they are keen for reforms to be implemented to ensure that the risk is
reduced, but I am not entirely sure that the public are aware of the details of the specific reforms. I agree that there is an appetite to ensure that lessons are learned and that processes are put in place. I want to reinforce a point I made earlier, because the Minister misunderstood it. I did not complain about his use of the term, “Shipman Bill”, which he immediately corrected and explained; I understand entirely his correction. However, if the Government propose something in legislation and refer to the Shipman case, we should be careful to avoid a situation in which people who have serious concerns about the legislation are regarded as unsympathetic or as having failed to learn the lessons. There is a genuine difference of opinion. During the passage of the Human Tissue Bill after the Alder Hey case, one sometimes formed the impression that if one really cared about what happened at Alder Hey hospital, one had to show it by backing measures that were quite restrictive. That situation was not right, and it may have been counter-productive in the end.
I do not want to dwell on the question of the coroner system, because we debated it in the Chamber some time ago. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), who chairs the Select Committee on Constitutional Affairs, expressed his concerns very well, and other people, including the Minister, have commented on the need to make more progress. I accept that the Minister cannot give a clearer timetable, but there are serious concerns about the support for coroners’ offices, not least in my county of Oxfordshire, which has had to deal with a number of cases, and about the need to ensure a uniform and professional standard for the coroner system.
I support the Government’s proposals for death certification, and I want them to be introduced. The medical profession rightly drew attention to the inadequacies of the death certification system years ago. I remember when I was a junior doctor being invited by the bereavement office to sign the cremation form for a patient whom I had not seen recently, although I was the treating doctor, and effectively signing off the judged cause of death in the medical notes, which then went to a part 2 completion. In retrospect, neither my colleagues nor I took the situation seriously. As it was one of the few things for which one received a separate fee, it was laughably known as “ash cash”. In retrospect, it was a disrespectful way of treating the whole exercise, but black humour is fashionable in the medical profession. The main problem was that it was done without any confidence that either signing doctor would pick up any foul play or negligence.
If that applies to cremation forms, where there is a higher level of foul play or negligence, the same should apply to death certificates. There are concerns, as featured in a recent television programme, that it is still difficult for the patient’s relatives to challenge the cause of death on the death certificate, so we must ensure that the process becomes a learning experience for the health profession, and indeed, patients. We must learn lessons, too, about patients who have died from natural causes, as the sad decline in hospital post mortems is deeply damaging to the education and training of current and future health professionals. We have failed to ensure that death certificates are as accurate as possible, if for no other purpose than audit.
The Minister rightly said that clues were missed during the Shipman case, and that information was not adequately combined during the Ayling case. We need a more coherent system of complaint gathering. I find it difficult to blame the GMC for the Shipman case, because it dealt with his drug use in the usual way, which was not to deprive someone of their livelihood indefinitely in the case of drug dependency, but to seek to manage it. If a mass murderer has previously encountered the prison and court systems, it does not mean that the court system is negligent in failing to spot continuing homicides. There is no doubt that the system of medical checks and audit failed Shipman’s victims, and there is no good reason for failing to identify a better audit trail on the use of controlled drugs and the GPs’ death rates. When I say “no good reason”, I accept that the health service has other priorities, but we must ensure that we protect health service auditing. There are so many targets, emergencies and patient needs that sometimes things like auditing, which do not attract bespoke research money, are the poor relation. It is critical to improve medical practice, as well as to pick up on poor practice.
We must ensure that in any procedure that makes complaints easier, we avoid the problem of racial bias, which, for reasons that are not clearly known, sometimes occurs in complaints against doctors. We must ensure that doctors who are the subject of complaints are treated fairly, as I have said. On the issue of complaints metrics, the Minister rightly said that it is important that patients and the public can complain about doctors. However, I am worried that if hospitals or other employers—not individual doctors—are measured on the basis of the number of complaints, we will create perverse incentives. There is a strong argument that, all things being equal, units against which there are more recorded complaints are probably doing a better job by allowing complaints to be made, but one could take a view of the quality of care based only on the number of valid complaints. I should be grateful if the Minister assured me that performance monitoring will not mark hospitals, NHS units or PCTs down on the number of complaints. If anything, a significant number of complaints may represent the good practice of enabling complaints to be made. Without complaints, we would miss a real opportunity.
The Government are right to tackle controlled drugs as they propose. I strongly support their approach, but the Minister knows that patients can be poisoned, and that doctors can poison their patients deliberately or inadvertently, with all sorts of drugs, not just controlled drugs. The lessons that we have learned in controlled drugs cases must apply to other drugs, too, because doctors’ prescribing practice is an area in which there is a great deal of room for improvement. The question is about best care, not just about criminal liability. I have a couple of questions about regulation, which the BMA, too, has raised. It would like to know the details of the timetable and the national advisory group on professional regulation, which has supposedly been set up to advise the Department and the devolved Administrations on the detailed implementation of the proposals.
Does the Minister believe that the proposals for doctors to appeal against adverse findings by the regulator in the new system will be adequate and accessible without too great a legal cost? Another concern is that the appeal process is expensive, and when we are dealing
with the health service and the needs of its employees, it is money that might otherwise be spent on health care. We need a system that is not just thorough but efficient. I welcome the Government’s general approach. My concerns about the proposed speed and extent of coroner reform, and the proposed medical regulation, should not be taken as a general criticism either of their approach or, in particular, the Minister’s openness and his ability to engage with the professions, the public and the Opposition on these matters. I look forward to his response.
4.9 pm
Mr. Andrew Lansley (South Cambridgeshire) (Con): I join others in thanking the Minister for securing us this opportunity to debate the issues, not least because the way in which he introduced the debate has, apart from anything else, allowed us all to raise some of the issues in interventions, which has been helpful in exposing some of the issues for future resolution, and saved me from having to explain many of the things that I otherwise might have.
I also share the Minister’s appreciation of the contributions that the hon. Members for Stalybridge and Hyde (James Purnell), for Denton and Reddish (Andrew Gwynne) and for Calder Valley (Chris McCafferty) have made in representing their constituents. As constituency Members of Parliament, we can barely comprehend the scale of the distress and grief that Harold Shipman’s evil caused. However, it must be of comfort to the families and the communities that those hon. Members represent that their Members of Parliament have been active in representing them and are here today, ensuring that the issue does not become unfinished business. I entirely accept the point that the Minister made. We must all learn from the past and ensure that they we do not allow the deficiencies of reform in the past to prevent us from taking the necessary steps today.
I am therefore all the more grateful that Ministers tackled the question of controlled drugs in the Health Act 2006, in part 3, which we generally welcomed. There will be the question of what the role of the inspectorate of the Royal Pharmaceutical Society of Great Britain may be in helping to buttress accountable officers and how the two might interact with one another. We do not want any duplication between the two, so it will be helpful to consider that as time goes on, particularly as the RPSGB will, for professional regulatory reasons, be separated from the proposed general pharmaceutical council. That gives even greater confidence that the RPSGB will be a proper vehicle for exercising greater professional scrutiny.
We debated the timetable for coroners reform, so it was a surprise, given the availability of draft legislation, that Ministers did not introduce legislation in this parliamentary Session. That was only a matter of surprise, however. It would be a matter of disappointment, which would be shared throughout the House, were Ministers not able to bring anything forward in the next Session. It is not that every issue is resolved, but with the consensus that exists, I cannot but feel that the coroners system is ready for reform. The basis of that reform must be a greater assurance that investigation of suspicious deaths will take place to uncover wrongdoing. Perhaps most important, we must ensure that the system is not
so rigid, for reasons to do with historic legal structures, that it fails to be as sensitive and supportive as it should be to the relatives of those who have died. They must be assured that the issues will be fully investigated.
I do not represent that part of our Front Bench that will be responsible for the structure of coroners reform, so now is not the moment for me to address it. However, I am sure that we shall want to consider carefully the relationship between medical examiners, in the context of the NHS, medical assessors—a recommendation of the Luce review—and coroners, and whether, if we do not take up that recommendation, medical examiners will in practice be able to give coroners the necessary support. I hope that they can.
It must be right that consideration of the process of death certification and coroners reform should proceed alongside one another. I have seen that Ministers wish to embed medical examiners in primary care trusts. I think that that is the right thing to do, as it will put medical examiners in a position where they can link their role into performance management of primary care providers and commissioners. Although the Select Committee on Constitutional Affairs was worried about the risk of a conflict of interest, we do not need to go down the policy line too far with the Minister to recognise that, in terms of corporate and clinical governance, primary care trusts will at the very least separate their commissioning and provider functions. The role of a medical examiner in those circumstances forms part of that core PCT commissioning responsibility, so that whether providers are community-based providers or hospital-based providers, a medical examiner could clearly be independent and have no conflict of interest.
I should like to talk for a few moments about the regulation of the medical profession. Let me put the matter in context. The Minister quite rightly said that the medical profession continued to command a very high level of confidence among the public. The system of regulation of the medical profession also continues to command confidence. However, when one considers the issues that we are dealing with and the responsibilities of the medical profession, the system of regulation and the level of confidence enjoyed must be exemplary. For example, if one says, as is true, that three quarters of the public are fairly or very confident in the system of regulation of the medical profession, we submit that that is good, but not good enough. If one in four patients do not feel confident that their complaint or their belief that something has been done wrong will be properly investigated, that is too many people. We need to minimise any lack of confidence in regulation of the medical profession.
Although it is sometimes tempting to say that the enormity of what Harold Shipman did was so exceptional that one could not extrapolate from that lessons about regulation of the medical profession as a whole, the principle that we are dealing with is a risk-based system of regulation. One calculates risk by calculating the probability of an event and looking at the severity of its consequences. One has to contemplate only for a moment the enormity of what Harold Shipman did to understand that even a tiny probability of such an event occurring means that one must, taking a risk-based view of proportionate regulation, have a very robust system of regulation in place.
| Next Section | Index | Home Page |