Clause 19 - Abolition of NHS Tribunal
Health and Social Care Bill
9:30 am
Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)
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, Conservative)
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 John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)
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 Philip Hammond (Runnymede and Weybridge, Conservative)
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 John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)
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 John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)
I shall address those points hopefully in order.
I have already dealt with the way in which Government thinking has moved on since the debates in July 1999. As far as I can recall, the assurances given on how the 1999 legislation would operate were correct at the time and remain correct in respect of the legislation. We now propose further changes to the legal framework, which I explained this morning.
Some feel that in politics the worst thing that Ministers can do is to change their thinking on an issue. Such people attach the highest premium to sticking to a position. However, I believe that if a Minister gains a new insight or a new understanding of where problems may lie, it is perfectly proper for him to bring it to bear on future policy. That is what we doing now.
I am not sure whether it is appropriate to go into detail during a clause stand part debate on how the new procedures will operate, especially as we shall be discussing that in relation to other clauses. I have signed the declaration that, in my judgment, the measures in the Bill are compatible with human rights requirements. Although, under our proposals, the ability to suspend or disqualify will pass to the health authority, it will not have escaped the notice of the hon. Member for Runnymede and Weybridge (Mr. Hammond) that we are reconstituting the Family Health Services Appeal Authority so that it is no longer a body of the Secretary of State; otherwise, it would not have had the independence necessary to meet the requirements of the Human Rights Act 1998.
I believe that we are taking the necessary measures to ensure the proper procedures. For instance, we shall be discussing in later clauses whether suspension would affect the human rights of practitioners, and I am sure that we shall consider maintenance of income in such circumstances. We have studied what is necessary to make the Bill compatible with human rights legislation.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I accept what the Minister says, which is why the final court of appeal will be quasi-judicial. I want to focus on what might be called the court of first instance. Will the health authority's informal role, which the Minister outlined during our debates on the 1999 Act, be clearly and distinctly separate from its formal role in disqualifying practitioners? Will a formal hearing procedure have to take place, and will that be quasi-judicial—will a burden of proof be required at that stage, or will the whole process be informal until the point when an appeal is lodged to the FHSAA?
Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)
The hon. Gentleman will be aware that future clauses provide for the ability to make regulations on how the health authority should conduct that process. For example, the Bill makes it clear that we shall set out the criteria that health authorities must take into account when considering whether to suspend or disqualify a practitioner. That implies that a process has to be followed, and that the health authority would have to demonstrate that it had done so in order to comply with the legislation. The process will include written notification and the opportunity for a hearing. There will not be a slide from general performance management into taking practitioners off the list; there will always be a point at which the practitioner will know that the process is taking place. It is worth re-emphasising that the provision is part of a wider picture and that it should give health authorities better informal powers.
A few weeks ago, we announced the formation of the National Clinical Assessment Authority, a body to which health authorities could informally refer GPs if they had doubts about their performance or assessment. Since July 1999, we have moved to strengthen the early intervention powers available to health authorities if they were concerned about doctors' practices.
The hon. Gentleman asked other specific questions. The Bill does not abolish the NHS tribunal for Scotland; the NHS tribunal will continue to operate there. It is a matter for the Scottish Parliament. We shall be discussing later the arrangements between England, Wales and Scotland, to ensure that practitioners who are not on the list in one country are not on the list in the others.
I hope that I have answered all the points raised by the hon. Member for Runnymede and Weybridge, if only briefly.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.