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Session 2000-01
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Standing Committee Debates
Health and Social Care Bill

Health and Social Care Bill

Standing Committee E

Thursday 25 January 2001

(Morning)

[Mr. John Maxton in the Chair]

Health and Social Care Bill

9.30 am

The Minister of State, Department of Health (Mr. John Denham): On a point of order, Mr. Maxton. Further to my point of order on Tuesday morning, it might help the members of the Committee if I brought them up to date with discussions taking place through the usual channels regarding our sittings. It is intended that at or immediately before our rising at 11.25 am we should move to a meeting of the Programming Sub-Committee, at which it will be proposed that the Committee sit, if necessary, up to 7 pm this evening, and to set out the possibility of meeting at 4.30 pm on Monday. Those are the possible arrangements to deal with the extra amendments that we will discuss. If the Committee makes better progress, the arrangements will not be necessary.

Clause 19

Abolition of NHS Tribunal

Question proposed, That the clause stand part of the Bill.

Mr. Denham: Clause 19 sets out the arrangements for the abolition of the NHS tribunal, which is an integral feature of the proposals in the NHS plan to modernise the way in which poorly performing primary care practitioners are dealt with. We want to make the system more effective, quicker and fairer, not only for patients, but for practitioners.

I hope that you will bear with me, Mr. Maxton, if I put clause 19 in context by referring, at least in passing, to clauses 22 to 28, which are relevant. Taken together, the clauses update the provisions for managing health authority practitioner lists. Clauses 22, 25 and 27, which we will debate subsequently, deal with lists and cover doctors, dentists, pharmacists and optometrists. They relate to non-principals as well as principals, and to practitioners who operate under parts I or II of the National Health Service Act 1977. Clause 22 deals with part II principals by amending the existing powers on admission to health authority medical, dental, ophthalmic, pharmaceutical and dispensing doctor lists. Clause 25 extends the concept of health authority lists to non-principals, and clause 27 extends it to doctors and dentists who are part I practitioners.

I mention those three clauses to try to avoid some repetition. Between them, they apply the same principles and procedures to each list, with any variations simply being those needed by the circumstances of particular groups. Although the clauses may seem similar in structure, that is the design and purpose as the issues that underlie them are the same.

The lists will underpin health authority systems for managing primary care services and for improving quality. The clauses will improve the arrangements by: giving health authorities powers to suspend or remove practitioners from their lists; extending the arrangements into the new provisions for service delivery, such as personal medical services, under part I of the 1977 Act; giving health authorities powers to remove practitioners from their lists on grounds of unsuitability, as well as when they are prejudicial to the efficiency of the service or because of fraud; and giving practitioners rights of appeal to the Family Health Services Appeal Authority against decisions by their health authority to remove them from its list. The clauses also reconstitute the Family Health Services Appeal Authority so that it is fully independent of the Secretary of State, and by including provisions to ensure that the new system operates quickly and effectively to address any risks to patients or to the service and to deliver proportionate and fair outcomes to practitioners.

We will have the opportunity to discuss the detail of the arrangements as we consider each clause, but those clauses are very much part and parcel of the series of measures that we are discussing on clause 19, to which I shall now return.

Only a small number of practitioners are referred to the NHS tribunal. However, there have been some problems with the tribunal's operations. It has been in existence since 1911, and has been responsible for the suspension and removal of poorly performing practitioners from health authority lists, but the system is now outdated.

Mr. Philip Hammond (Runnymede and Weybridge): Does the Minister remember saying that

    the tribunal has operated effectively, with the broad confidence of the national health service and the professions, during that period.—[Official Report, Standing Committee A, 20 May 1999; c. 881.]

What has changed since 20 May 1999?

Mr. Denham: At that time, I had been in my post for only about six months. Since then, we have had the opportunity to consider more closely several cases going through the pipeline in which general practitioners' performance has been found wanting, perhaps in the criminal courts or by the General Medical Council. I have had to ask myself why those cases had not been referred to the NHS tribunal or why it had apparently failed to act. My conclusion is that a significant number of health authorities have lost confidence in the arrangement and take the view that the tribunal's procedures are unable to deal quickly enough with practitioners who pose a danger to patients. That has led to a situation in which health authorities are reluctant to instigate proceedings, so the tribunal's case load is light, averaging as few as eight cases in recent years.

Mr. Hammond: Surely the Minister is not suggesting that his predecessor as Minister of State at the Department of Health—now the Secretary of State for Health—overlooked such important matters when he was in the post. He would surely have had the forward-looking qualities needed to see precisely the problems that the Minister has identified.

Mr. Denham: Mr right hon. Friend the Secretary of State for Health gives way to no right hon. or hon. Member, or to any member of the Government, in his determination to improve quality in health provision. He has led the way in campaigning for improvements, from the development of the first-class service that set out our quality agenda, to his consistent pressure for effective reforms of the regulatory system,

As each year goes by, more information becomes available, giving Ministers greater opportunities to study individual cases. As a Government, we now believe that the obstacles to making the NHS tribunal work quickly and effectively for patients, and fairly for GPs, are so great as to make us try to find a better system. It causes me no embarrassment at all to say that I no longer take the same position that I set out with as Minister of State in 1999. As I have said, since then I have had the chance to consider some cases, not all of which are yet entirely in the public domain, that have convinced me that we need a better system.

Health authorities are sometimes reluctant to refer cases to the tribunal because they perceive its processes as slow and bureaucratic. It would be wrong to cite individuals or health authorities, but in two recent cases the first action against a practitioner was the commencement of criminal proceedings, rather than action by the health authority to seek the suspension or disqualification of the doctors concerned. In both cases, the health authority did not refer to the tribunal because it considered that quicker action would result from letting the criminal case proceed. That is not good enough.

We must give health authorities the right tools for the job if we expect them in future—as we do—to monitor practitioners' performance and standards of behaviour and to take action quickly when necessary. As I caught your eye earlier, Mr. Maxton, I will not go into detail of the later clauses again, but we intend to have a system for suspending or removing practitioners that is faster, more effective and fairer to practitioners and their patients. We propose to confer on health authorities new powers akin to those of employers to suspend and remove practitioners from their lists. That will remove the need for the NHS tribunal.

The NHS Confederation, representing NHS managers, has welcomed clause 19. There has been no public opposition to the abolition of the NHS tribunal from the General Practitioners Committee of the British Medical Association. We must of course not overlook the rights of practitioners. Future clauses will deal with rights of appeal against a decision to remove, or contingently remove, a practitioner from a list. A need will arise, consequent on the clause, for a properly constituted and independent Family Health Services Appeal Authority. Clause 28 provides for that.

Mr. Hammond: Despite some effort, clause 19 defied amendment, which is why we are now debating clause stand part. The best argument against treating the matter in hand as an open and shut issue came from the Minister in Standing Committee A on 20 May 1999. When we discussed circumstances that could lead to the disqualification of practitioners, my hon. Friend the Member for Lichfield (Mr. Fabricant) and I raised several concerns about practitioners being deprived of their livelihoods. We asked for reassurances about the nature of the process that they would undergo.

The Minister has told the Committee this morning that the NHS tribunal will be abolished, that instead health authorities will take its role, and that appeals will be referred to the Family Health Services Appeal Authority. I am sure that the Minister will correct me if my paraphrase is wrong. The problem is that the Minister is adding nothing, but only removing a part of the current process. He told Standing Committee A, in response to an intervention by another hon. Member:

    Concerns were expressed about whether we might be seeing the evolution of the tribunal into an arbitrary kangaroo court sitting in judgment over general practitioners. I had been trying to say that a case would reach the tribunal only after, for instance, internal health authority disciplinary arrangements had begun, or following measures to support and bring up to standard poorly performing doctors.—[Official Report, Standing Committee A, 20 May 1999; c. 882.]

The Minister argued that the present safeguard is the initial informal involvement of health authorities in difficult situations, with referral to the tribunal happening only later. In answer to a question from me about the nature of the tribunal and the guarantees and safeguards, the Minister said—and perhaps the reason that I am repeating these points is that I have a long memory—

    I honestly think that the hon. Gentleman is making a ridiculous meal out of this. Given the track record of the tribunal and its status as an independent body—the Secretary of State has no influence over its quasi-legal, quasi-judicial hearings—as well as the seriousness of the offences that it has heard, I cannot foresee any circumstances in which it could be used in the way that the hon. Gentleman suggests. —[Official Report, Standing Committee A, 20 May 1999; c. 890.]

That was a response to concerns about the human rights implications of people being deprived of their livelihoods by a tribunal decision.

The Minister now proposes that health authorities should take the decision, subject, of course, to an appeal to the FHSAA. Health authorities are not quasi-legal, quasi-judicial hearings, over which the Secretary of State has no influence. The Secretary of State has great influence: indeed, he has power to direct health authorities. They cannot be regarded as impartial bodies. The Minister's proposal would remove from the process any quasi-judicial function at first instance. I accept that there will be a quasi-judicial body, the FHSAA, as an appeal mechanism. However, in the first instance, such matters will be dealt with by a non-independent, non-quasi-judicial body. That is important because previously the Minister outlined a mechanism of cases going first to the health authority as an informal, non-judicial body, then to the tribunal and finally to appeal. Now, we have just two steps: cases will go first to the health authority and then—and only if there is an appeal—quasi-judicial involvement.

9.45 am

Section 47 of the 1977 Act, which was inserted into that Act by the Health Act 1999, provides for a health authority to ask the tribunal to review a conditional disqualification. There are several provisions of that nature, but I will take that one as an example. Section 47 states,

    If any health authority request a review of a conditional disqualification on the ground that

—and then lists a number of grounds—

    the tribunal shall review the conditional disqualification.

What will happen now? Will the health authority request itself to review a conditional disqualification that it has made? That is not a sound process. Has the Government thought through the consequences of abolishing the tribunal? Can the Minister tell us how the mechanism will work when health authorities are effectively subsuming their roles and those of the tribunal under the existing system? Will the Minister confirm whether it is the case that sections 46 to 49 of the 1977 Act are to be repealed by schedule 5? Will clause 19 be necessary because, if sections 46 to 49 are repealed, the national health service tribunal will no longer exist or be referred to in the extant legislation? Clause 63 and schedule 5 will have the same effect. The principal of parliamentary drafting is economy and on that basis clause 19 may be redundant.

Can the Minister tell us what the position is in Scotland? The legislation includes reference to the NHS tribunal in Scotland; is that tribunal different from the one we are discussing; is it constituted under a different Act, but has the same name? Will that tribunal continue to function? Will it be affected by the Bill? Can the Minister assure the Committee that he dealt in his opening remarks with all the current functions of the NHS tribunal and how they will be handled in future? Can he also assure us that the NHS tribunal has no functions other than the ones he has referred to in relation to the qualification and disqualification of medical practitioners? If there are any other functions, can he tell us who will be responsible for them and how they will be handled?

 
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Prepared 25 January 2001