H&SC 17 Mental Health Act Commission

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?

How long before our proceedings today will be available to read?

I am advised that it should be within two days.

So will we be able to read and quote from today’s proceedings during Thursday’s debate?

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.

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  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.

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

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

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  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

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

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  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.

Let us stick with this matter for a moment. I bring in the Minister.

Q 65

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.

Q 66

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

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  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

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?

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

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

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  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.

Sorry, standard of proof.

Lady Justice Smith: That is all right. There has never been an argument about the burden of proof.

Q 71

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?

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

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

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

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,  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.

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

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

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

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

There is also the competence of the profession.

Lady Justice Smith: Of which profession?

Q 79

The medical profession. There would be more competence in the system with a legally qualified person.

Lady Justice Smith: I would have thought so.

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  should struggle with the job that is really a professional legal job, in important circumstances, such as these disciplinary proceedings, adjudication panels are.

Thank you very much.

Q 80

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

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

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.

Thank you.

Would any other Members like to ask a question?

Q 83

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.

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  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 employers 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

Finally, what is your view on appointments vis-Ã -vis elections?

Lady Justice Smith: Appointments?

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.

Are there any other questions?

Q 85

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  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

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.

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?

Yes, just to declare that my husband is a qualified doctor and a public health physician, and therefore—[Interruption.] I am sorry?

Sorry, I was being flippant. I said, “Is there such a thing as an unqualified one?”

Let us have this properly for the record.

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.

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.

Findlay Scott: Good afternoon. I am Findlay Scott, I am the chief executive of the GMC, and I have been there since 1994.

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.

Mr. Scott?

Findlay Scott: No, thank you.

All right. Laura, I wonder whether I can ask you to lead the batting for the Committee.

Q 87

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.

Thank you.

Q 88

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

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

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.  

Q 91

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?

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.

Thank you.

Q 92

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  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

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.

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

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  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

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

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  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 retaining accountability to Parliament.

Q 97

What about the issue of cost control?

Findlay Scott: Cost control is clearly an issue. I hesitate to speak for the entire council. I think we start from the assumption that mechanisms can be found to ensure that costs are reasonable, but the principle of independence is one which has been at the heart of the council’s proposals since November 2006. I am very glad that the Government endorsed and picked up those points in the White Paper. In a sense, if the trade off was between more independence with the risk of less control over costs, I think that that is a trade off that the council would accept, because of the importance that it has consistently attached to the need for all elements of the regulatory system to be independent of the near-monopoly supplier of health care.

Q 98

Would it be fair to say that the GMC has moved a considerable distance on a number of issues over the recent years, and that that has not always be easy for your council?

Sir Graeme Catto: It is very interesting that, as the war is being fought outside our building, we have been quite united within it. It has not been a troublesome or a turbulent council, so the recommendations in the Bill reflect very much the views of the council.

Q 99

So you have not had any lively debates?

Sir Graeme Catto: We have lively debates every time we meet, but they have been friendly and collegial. We have had less turbulence in the past few years than we had during the 1990s, as a council.

Q 100

The British Medical Association does not like the way that you have shifted your position, does it?

Sir Graeme Catto: We are quite separate from the BMA. We are not a trade union organisation. We are quite independent of the professional body—that is the great advantage in the United Kingdom of having two separate organisations. We are totally independent of the BMA.

Findlay Scott: That is why the council attaches such great importance to ensuring that we can command the confidence and support of all the key interests: patients and the public, the profession, the NHS and other health care providers, medical schools and medical royal colleges. The council came to a very firm conclusion in 2006 that if confidence and support depended on the presence of a majority, then clearly it could only command the confidence and support of one interest group. That was not acceptable for a regulator, hence the module based on parity, which the council proposed and, I am delighted to say, you have endorsed.

Q 101

May I ask a couple of questions about the standard of proof in medical malpractice cases? In  your public affairs briefing of 30 November you described the suggestion to change the burden of proof from the criminal to the civil standard in medical malpractice cases. You said that you saw the application of a civil standard of proof as

“consistent with protecting patients and the public interest”,

and at the same time “fair to doctors”. Is that still your view?

Sir Graeme Catto: It is more than our view, it is now our policy. The council took a decision at the beginning of December that we would be moving, regardless of legislation, from a criminal to a civil standard of proof, for the reasons that you have just given and for the reasons that Dame Janet gave.

Q 102

There are some who have suggested that to move to a civil standard would be unfair to the medical profession. What is your answer to that?

Sir Graeme Catto: I think that it is based on a misunderstanding of the way the civil standard of proof can accommodate cases of significant severity. My understanding is that the amount of evidence required and the cogency of the argument need to be increased in accordance with the severity of the charges and, therefore, the likelihood of the severity of the sanction on the individual practitioner. Without going into sliding scales, the civil standard itself can accommodate that type of case. Already, six of the regulators have moved to the civil standard of proof, and it seems to be working well for them. I do not see any reason why it should not work well for doctors.

Q 103

Do you have any idea, or would you speculate at all, on whether, if the standard of proof was changed to the civil standard, you would expect any change in the number of doctors who may be found guilty of malpractice or misconduct?

Sir Graeme Catto: We think it is not going to have any significant effect at the serious end of the spectrum. The situation for doctors who at the present time are erased from the register because of serious issues relating to fitness to practice would remain unchanged. There may be an impact on doctors whose practice has failed to a lesser extent and whom the council may therefore be able to pick up at an earlier stage in the process—not to seek erasure or that sort of sanction, but perhaps to make sure that they abide by conditions and undertake appropriate training before the situation further deteriorates. Looking at the numbers that we are dealing with, we think that any impact is likely to be small and it is likely to be at that end of the spectrum rather than at the serious end.

Thank you.

Q 104

May I ask a quick question about evaluation of the impact of the Bill? First, will the GMC be involved in evaluating the effect on professional regulation, which is fairly key to the GMC? If so, could you give us some more detail about how the GMC intends to do that?

Findlay Scott: We are fortunate in having developed a partnership with the Economic and Social Research Council. That partnership is leading to the development of a number of research projects which we are funding through the ESRC public partnership programme. Our intention would be to work with the ESRC to evaluate both the changes that will result from this Bill but also, as Lady Justice Smith mentioned, the many other changes that will flow from other forms of legislation.

Sir Graeme Catto: It is important that we do that. The evidence base for regulation across the world is relatively weak, so getting information and making sure that we can make changes based on factual information will be extremely useful in future.

Q 105

I want to move on to responsible officers. We heard some concerns raised in the earlier session. How do you see the concept of responsible officers working in practice?

Sir Graeme Catto: May I start by moving revalidation to one side? It is not in the Bill at the present time. As you probably know, a number of working parties in the Department of Health, with which we participate, are looking at that. Findlay is very much involved in that, but it does not directly impact on the Bill at this stage.

From our perspective, the concept of the responsible officer helps us to bridge what Liam Donaldson described as the “regulatory gap” between what happens locally and what happens centrally. We believe that quite a number of cases that come to us might be much better dealt with at local level before necessarily being escalated up to us. Clearly, we want to deal with the serious issues, but quite a number of items that are brought to our attention might be much better dealt with locally and we see the responsible officers working in that way.

The Bill indicates that we may have a role in the appointment of a responsible officer, but we would see that only in the broadest of terms, seeking to define what their role might be, rather than being involved in any individual appointments of responsible officers. It would be very helpful, from our perspective, to have people working in the local areas who understood the GMC processes, knew when it would be sensible to refer a doctor to us if they were concerned and could link more effectively with our own staff.

Q 106

So is this a way of shifting the workload?

Sir Graeme Catto: It is making the workload appropriately based, rather than having it sucked through. It must be right that people working in the local situation, where they are more aware of what is going on, take greater responsibility for what is happening and send centrally those cases that need to come our way.

Findlay Scott: Our starting point has consistently been, as Sir Ian Kennedy said in his report on events in Bristol, that it must be for the employer first and foremost to deal with issues of poor performance and misconduct. The challenge within the national health service has been translating that into effective practice. Clinical governance has come a long way in the past 10 years. We see the appointment of responsible officers as a further strengthening of local governance and as a  reinforcement of local responsibilities. It also delivers a second huge benefit to us—clearer arrangements for the interaction between national and local regulation. It is not about shifting responsibility because such responsibility already exists. The measure is about clarifying and codifying responsibility, which has sometimes not been lived up to.

Q 107

The Medical Protection Society has argued that medical directors will not have enough time to act as effective responsible officers, a view with which Lady Justice Smith went along to a certain extent. Does the GMC have a view on that?

Findlay Scott: Only in the sense that for any function, adequate resources must be provided. It will help no one if the responsible officer function is a theory rather than a practice. There is a gain to be made. There is substantial evidence from our procedures that early and effective action could have saved doctors’ careers, if problems had been identified sufficiently early and not allowed to drift. Clinical governance has already made a substantial contribution to that. Responsible officers, provided that the concept is adequately resourced, could further add to the opportunity to identify problems early and effectively.

Q 108

You talk about being resourced adequately, but it seems that we are talking about the time factor as much as finance. How do you find more time in the day for the average medical director? That is a challenge, is it not?

Findlay Scott: I agree—it is a challenge. When I talked about resources, I had primarily in mind the scarcest resource of all—time. I have no doubt that trusts will have to look carefully at the other responsibilities of medical directors and consider how they can be supported.

Q 109

Do you concur with the view expressed by Dame Janet that there is almost inevitably a tension between having such a responsibility and wanting to keep your trained work force? On the other side of the equation, you might be required to push people through a procedure whereby they might lose their job.

Findlay Scott: Many of us have seen a huge change in the past 10 years. There was evidence 10 years ago that blind eyes were being turned, often to enable a service to continue to be delivered notwithstanding the fact that the professionals involved were not fully up to the job. The evidence of our fitness to practice procedures today is that trust managements are alert to their responsibilities and, like us, they have patient safety very much at the forefront of their mind. Although there was such a risk 10 years ago, it is much less today.

Q 110

The supply of doctors, which has changed significantly, would also make a difference to a responsible officer’s reluctance or otherwise to get rid of a qualified doctor.

Sir Graeme Catto: I am with Findlay on the matter. I was a medical director some years ago. Having spoken to medical directors recently, I think they would very much welcome clarity in their role and knowing  precisely when they should pass things on. The concept that doctors are protecting doctors whom they know to be a danger to patients is no longer.

Q 111

Moving back to the time needed to do the job, do you share my concern that the danger for an organisation is that it ticks the box marked “We have appointed a responsible officer” and considers the job done, but there is no resourcing—money and time are the same thing in the NHS—or no additional resources are put in, or resources are diverted because there is no new money coming in to fund the set-up. The new set-up is ideal; as you rightly say, it is evident to most people that resolving issues locally prevents bigger mistakes further down the line, but it is enormously time consuming if done properly. It is not something that can be squashed in on a job description. Perhaps you are not as cynical as I am, but I am concerned that there will be no additional funds to support the change, and that it will therefore not be done adequately.

Sir Graeme Catto: I do not think that you can be president of the General Medical Council and a real cynic—you must be unreasonably optimistic if you are president of the General Medical Council.

Your point is absolutely right, but we keep looking at only one part of the NHS or at only one part of medical practice, and not at the whole. The medical director does not work in isolation: he or she works within a clinical governance framework and there are clinical directors who know in much greater detail what is happening in their specific specialties. If the measure is to work, we will need to ensure that leadership and management arrangements throughout the NHS make it clear to medical students, doctors in training and established doctors precisely what their role within the organisation is, as well as within the NHS itself. We have been slow to do that in this country.

Q 112

May I return to the question before that one, where you were talking about the changes you felt had been brought about in the past few years, in terms of doctors turning a blind eye at one time when they knew colleagues perhaps had some problems and questions to answer? Could you just clarify for me where we are now? This applies particularly to very senior doctors at consultant level—the Minister will be only too familiar with this, as we both share a general hospital in Devon, where some years ago a consultant was suspended after an investigation and it turned out that the problems we experienced in our hospital had been experienced in his previous hospital. I would like you to talk us through how you sorted the problem of one colleague—a senior colleague perhaps—giving references to another senior colleague. Would the medical directors be involved in that part of the process when people move, at senior level, from one hospital to another?

Sir Graeme Catto: May I make just a couple of points? One is that I did not mean to sound complacent and say that we had cracked this issue, because I am quite sure we have not. Indeed, the cases that have come to us—with the possible exception of Harold Shipman—all had a long history in the locality where the doctors were known and action was not taken, for whatever reason. Often other doctors were aware of  what was going on, so I do not want to sound complacent. I think the situation has improved but I am not sure that we have cracked it completely.

Q 113

But within the hospital system, would you see the medical director having a role in terms of new senior people coming to work in the hospital?

Sir Graeme Catto: Well of course they will, and as Dame Janet Smith was indicating, when revalidation comes in, that will be an absolute reality. In terms of getting references that may be inappropriate, we have, as you probably know, already taken action against a very senior doctor who was accused of doing precisely that, so we take these things very seriously. The point you are making though is that they ought to be dealt with long before they come to the GMC, and it ought not to be part of a medical culture.

Exactly.

Findlay Scott: If I may, two things: Sir Graham says that we have been very clear on the issue of references, both in terms of our guidance and also of the action taken. But also within the White Paper published in February 2007, there is a very clear expectation that when doctors move, information will move with them within the national health service, which does not always happen at the moment. That is in the context of revalidation, so one of the responsibilities of responsible officers in relation to revalidation will be to pass a package of information from hospital A to hospital B as the doctor moves, so there should be no opportunity—as there has been in the past—for a doctor simply to leave their problems behind.

Q 114

What would the situation be with GPs?

Findlay Scott: The same with GPs. There would be a responsible officer for general practitioners and the same thing will happen then: a package of information will follow all doctors in fact as they move from one job to another. There will be a transfer process from one responsible officer to another.

Q 115

Immediately following on that discussion, and one other issue: who will train—and have responsibility for training—these responsible officers?

Findlay Scott: Inevitably it will be a joint venture with the NHS. Their responsibilities primarily will be local responsibilities—for the reasons we discussed earlier—but a key gain from the appointment of responsible officers will be the opportunity for better co-ordination between local and national arrangements, and consequently we very much want to play a large part in their training.

Q 116

That is something we could usefully seek to ensure is properly articulated during the course of the Bill. It is no good inventing a concept without having the practical ability to deliver, and training is going to be key to this—particularly because, as I read it, these are not going to be full-time equivalent posts. They will be part-time responsibilities within other very serious responsibilities, in all  likelihood, and the process is not going to work if we have very sharp variability across the country. I am glad we have clarified that issue.

The other point I wanted to raise, as we have a few minutes left, is that I presume—contradict me if I am presuming wrongly—that you were with Lady Justice Smith when she talked about clauses 93 and 94, about the need for a legal chair?

Findlay Scott: Yes.

Q 117

And on the need for us to either look for a Government Amendment or to put one down to resolve that issue on the OHPA? Also, could I ask your views on the balance between lay and professional members, assuming there is a legal chair of the adjudication panel? To have your views on that would be helpful.

Sir Graeme Catto: As I understand the Bill at the present time, it does not preclude the possibility of having a legal chair. Indeed, that has been the situation at the GMC for many years. We want to have the best people as chairmen and it does not matter whether they are legally qualified, lay people or whether they are professionally qualified. We have always adopted that.

As regards the independent adjudicator, I think it is for the independent adjudicator and for yourselves to make that decision. It would be outwith the GMC’s remit.

Findlay Scott: I wonder if I could answer that. There are essentially two models in play. The current model, which is the one envisaged in the Bill as it stands, is that the panel normally of three or more people is supported by a legal assessor and the requirements of the legal assessor are set out in the Bill. They have essentially to be a senior lawyer. That is the system we operate at the moment.

As we were saying earlier, judging by the consistent quality of the decisions that our panels make, that system appears to work well, but it does not preclude the possibility of the second model, which is to have a legally qualified chair. I think if you were to insist on there always being a legally qualified chair that would raise an obvious question—why do you need a legal assessor?

What we have sought to do within the current arrangements is persist with the model based on the legal assessor but occasionally have legally qualified chairs where that is an advantage. I would be cautious about having both a legally qualified chair and a legal assessor. That would seem to be creating a little more employment for lawyers than was strictly necessary.

Q 118

I declare an interest, being a qualified solicitor who was in practice for a few years before becoming non-practising 19 years ago.

I found Lady Justice Smith’s train of thought as to the merits of a legally qualified chair very persuasive, as one might expect somebody of her calibre to be. That said, perhaps as we take that issue forward—it clearly is an issue that has been left on the table for this afternoon’s proceedings—we may consider whether, if  one has a presumption or even provision for a legally qualified chair, one would then dispense with the legal assessor or assistance.

In terms of the balance of lay members, currently an Order in Council cannot impose a lay Majority on the council of a regulatory body. The question I had was whether we ought to be considering whether that needs to be a consequence of what we are looking at. That might need to be reviewed. If there were a lay majority, what would the GMC’s reaction be to that?

Sir Graeme Catto: We are looking at two slightly different things.

We are.

Sir Graeme Catto: The original discussion related to adjudication panels, the ones we run now and the ones the new independent adjudication panel will run. What I think you are talking about now is the composition of the council itself. Our view has been the argument of independence. We strongly believe in being independent of Government and the Secretary of State and of any vested interest, including that of the medical profession, which is why we argued for equal numbers of lay and professional people. The council’s current view is that that is what we believe strongly and we are pleased that the Government have accepted that argument so far.

Q 119

I would like to reinforce the point that Stephen O’Brien was making. I must say I found the arguments of Lady Justice Smith very persuasive, compelling indeed, about a legally qualified chair. One of the points she made was that it would shorten proceedings because the chair would know what to do, know the full legal implications of decisions being made and there would be less need for a legal assessor if that were the case. No doubt there are many other arguments but you sounded neutral; it sounded like a lack of enthusiasm.

Findlay Scott: I do not mean to be unenthusiastic about anything Lady Justice Smith says. I think the key point is this: by any objective measure, our panels make consistent, high-quality decisions that are rarely overturned by the courts. So if there is an argument for a legally qualified chair, I do not personally believe it lies in the quality of the decisions. There may be real arguments in relation to the ability of a senior lawyer to control the proceedings in a way that constrains costs while remaining fair to doctors, and I think that that is an argument that deserves to be fully explored.

Sir Graeme Catto: May I just add that all our chairmen go through an assessment procedure, so it is not just a question of whether they fit into one category or another. They need to clear that hurdle, regardless of whether they are legally qualified, medically qualified or lay people.

Sir Graeme and Mr. Scott, thank you. We have sadly run out of our allotted time, but I think most people have made the points they wanted to make and we are most grateful to you for coming before the Committee. Your evidence was very much appreciated. We invite the British Medical Association representatives to take the chair.

If you are comfortable and ready to go, can I thank you both for coming before the Committee this afternoon? As you know, our session cannot go beyond 6 pm and my colleagues have a number of questions, but if you would like to introduce yourselves for the record, that would be helpful.

Dr. Meldrum: I am Dr. Hamish Meldrum, chairman of council at the BMA, also a practising general practitioner, now only one day a week, I am afraid, in Bridlington in East Yorkshire.

Dr. Buckman: I am Dr Laurence Buckman, I am a GP in north London and the chairman of the BMA GP working group. We are responsible for issues to do with revalidation, medical regulation and as such, I am in regular contact with the GMC.

I watched you with the Minister on “Newsnight” last night, but I will not sneer like Mr. Paxman, I promise. Anne Milton, would you like to put the first question?

Q 120

Thank you very much. This is the BMA’s opportunity to give full vent to your Opposition to the move from the criminal to the civil standard of proof, unless you have changed your mind?

Dr. Meldrum: No, we have not.

Q 121

So please feel free to go for it in every respect.

Dr. Meldrum: Well, just by way of introduction, contrary to what might be believed, we are passionately signed up to wanting to protect patients. But we believe that one of the chief ways of doing that is to have a regulatory system that everyone, patients and doctors, have confidence in. Hearing some of the earlier evidence, I think that there has been a welcome move over the last few years to more openness, more willingness to own up, not only to one’s own faults but to faults in colleagues, and we would not want to see anything that puts that back. Turning to your question on the standard of proof, we have consulted very widely on that at meetings, at our annual conferences and such like, and there is an overwhelming view in the profession that that move would be seen to be a retrograde step, partly for some of the reasons I have mentioned, and partly because they feel that to take away a doctor’s livelihood, which is effectively what you are talking about, on the balance of probabilities would seem to be unfair.

Dr. Buckman, do you want to add anything to that from a GP perspective?

Dr. Buckman: Yes. I think that there are several elements to the concern about the standard of proof. You talk about a sliding scale as if, somehow, it will be different when you have got to the end of the case. But of course, the standard of proof begins the moment either party starts to speak. You do not know at the beginning, necessarily, what evidence is going to produced during the course of a hearing and it may turn out that the standard of proof that is tested at the beginning of a hearing may subsequently be required to be reviewed because it has turned out to be a more serious case than we thought.

Most punishments that the GMC can currently deal out are such that the GP, or indeed, most doctors, will find it difficult to continue in practice of some sort. Anything beyond a warning issued to a general practitioner is going to result in their potential dismissal from future practice. That is quite serious. You may not know this, but a single day’s suspension from the list is enough to render you permanently off your PCT provider list. That means that any punishment beyond a withholding gets you written off. As a result of that, and the fact that the standard of proof will be seen as softer, many perfectly good GPs—it will apply to other doctors as well—will start to practise in a more defensive way. That defensiveness includes both behaviour and what they do for patients.

On the behavioural theme, you may say that doctors should practise with an eye to being defensive anyway, yet when it comes to doing things to patients, we have opportunities to X-Ray them, to scan or to do other things to them that may be perfectly reasonable in some senses but are inappropriate in others—both in terms of cost to the Exchequer and in safety terms.

For example, I would be more tempted to consider investigating somebody with, say, a CT scan. That might seem quite reasonable, but actually be inappropriate—and be offering someone an excessive radiation exposure—because I was concerned that I might somehow have to answer for my actions later.

Q 122

Thank you. You would take it out of the Bill, then?

Dr. Buckman: Yes.

Q 123

Perhaps I could explore that a little further. Is the point you have put there that the standard of proof for a doctor should generally be higher than one would expect in other sorts of employment relationships?

Dr. Buckman: Yes.

Dr. Meldrum: I am not sure that we are actually saying that. Obviously, we are here to represent doctors and other organisations must look after their people as they think fit. However, in areas where you are effectively taking someone’s livelihood away, to do that on the balance of probability seems to us a backward step.

Q 124

Would you be aware that the standard of proof based on the balance of probability would of itself be a significantly higher burden than in virtually any other employment relationship, where if someone were to lose their livelihood from, say, alleged gross misconduct, all that an employer would have to demonstrate to a tribunal would be a reasonable belief that the employee had committed the offence of which he or she was accused. They would not even need a presumption of guilt, just a reasonable belief.

I do not know whether you were in here earlier for Lady Justice Smith’s evidence—

Dr. Meldrum: I am afraid that we missed most of that.

Q 125

Well, would I be right that a balance of probabilities standard of proof is actually of itself quite a high standard of proof, or do I have that one wrong?

Dr. Meldrum: It does not seem to be as high a standard of proof as the one that exists at present. It is not really for me to try to justify what might or might not happen in other employment areas, but if you are saying that employees can lose their livelihood on a much lesser standard than the balance of probabilities, then that seems to me grossly unfair.

Q 126

Dr. Meldrum, you say that you are not here to talk about other areas of employment, but perhaps there could be something about other areas of health care professions. Our Committee was told that most other health professions use the civil standard of proof. What makes medicine so different?

Dr. Meldrum: I think Sir Graeme Catto referred to this, but there seems to be quite a lack of evidence around the whole regulatory system process, wherever you work. We would want to see evidence that such a change is actually going to make a great deal of difference. I think that the GMC has admitted that, at the higher end of the scale, this might not make much difference at all. We obviously welcome that. Now, if it is genuinely part of a supportive, helpful system at the lower end—rather than a punishing system, as many doctors see it—we will be prepared to look at that, but we need to see the evidence for it.

I do not think that we are trying to say that doctors are in some way special and should be different from everybody else. However, we have a system at the moment that uses the criminal standard and we have not really seen much evidence of why a change is needed for doctors. Again, I have to let other professions speak for themselves.

Q 127

Dr. Buckman, could I follow up on one comment that you made about potential changes in the way that a doctor might behave if there is a move to a civil standard of proof? Again, looking sideways at other health professions, have those fears been borne out in other professions where they use a civil standard of proof?

Dr. Buckman: I cannot speak for other professions. I do not know. The difficulty for the medical profession is that we have greater opportunity than other professions to practise defensively in a way that might put those we look after at greater risk. I am not suggesting that we would risk patients’ lives, but doctors could feel threatened. It does not matter if I am a good or a bad doctor—in fact good doctors are likely to feel more threatened than bad ones, because generally bad doctors do not know that they are bad, whereas the rest of us are scared stiff that we might be. Doctors will practise defensively and be more careful and cautious out of fear—be it real or unreal—that somebody will ask them difficult questions, so they will tend to do more. Doctors have a greater opportunity to do that than many other health care professionals, because of the level of seniority and the opportunities to do things that many other health care professionals do not have in quite the same way.

Q 128

I am trying to understand something. I might have missed the point here: you said that  doctors will be more careful and cautious. What is the opposite of that? Would they be cavalier and less cautious? What is it that you are currently doing that will change if you are to become more careful and cautious? How are you operating currently?

Dr. Buckman: I operate in the best interests of my patients.

Q 129

And being more careful and cautious would not be in the best interests of your patients? I am struggling to understand.

Dr. Buckman: I shall give you a very simple example. The vast majority of patients who come to me with a headache do not have a brain tumour or a serious brain disease. They might have a variety of illnesses, but serious brain disease would be very low on that list. In future, if I think that I might be taken to the GMC because I failed to investigate a headache, I will be referring people for CT scans. Forget the cost—let us assume that they are free. It is inappropriate to irradiate people for a disease that they do not have because you are scared that somebody will be worried about it. No one will scan everybody, but there is no doubt that some people will be submitted to investigations—not wildly ridiculous ones, but ones that probably would not be indicated—because the doctor is playing more carefully. We will see more blood tests and so on, none of which is done to punish the patient but to be extra careful. You go to your doctor for good clinical advice and expect him to provide the best possible service, not to be over cautious, which results in unnecessary measures for the patients. That is what I am talking about.

Q 130

May we continue this point, because I, like Mr. McCabe, am intrigued? I doubt that any of the cases that we know about, in which doctors have sadly run into trouble, were about over-investigation; they were about a cavalier attitude and not investigating properly. For me, that is where the risk lies. Did Steve’s question not touch on the real problem, which is quite the reverse of what you are saying?

Dr. Buckman: That is precisely what I said about behaviour. Doctors who practise good medicine will feel that someone is looking over their shoulder all of the time. Doctors who do not do things right will continue to do so. I am not here to defend them. If the GMC is going to sort them out, it is perfectly okay with me. I am talking about the vast majority of doctors who practise careful medicine, who do the right thing and who will perceive that lowering the standard of proof will mean that they will have to be more careful. That will subject patients to a higher degree of investigation.

Q 131

If I may say so, I am frankly worried, Dr. Buckman, that you seem to personalise your answers—“I was doing that”, and “I was doing this”. Can you furnish the Committee with survey evidence that would persuade us, if we were persuadable, that your colleagues have told you, in huge numbers, that they have this fear about defensive medicine? Personally, I am not convinced that you represent what you colleagues would really be saying.

Dr. Buckman: No, I cannot present you with such evidence.

You have given your personal view, which is useful to some extent, but I am talking about the rest of the profession.

Dr. Meldrum: What we could provide as evidence is the more general view about the changes in the standard of proof and the fairly overwhelming view, both in surveys and through confidence motions, that they are opposed to such a change.

I understand the Opposition, but that was not my point. I was talking about defensive medicine.

Q 132

I, too, am very puzzled by this attitude. My worst case in recent years concerned a child in my Constituency who died of meningitis. There was a great cry for a full local inquiry, and a number of changes in practice took place in both the ambulance service and the children’s hospital. How would you explain to my constituents whose child died why the signs of meningitis that they thought were there were not investigated—we are talking about a good competent doctor here? How could you justify the idea about a more defensive attitude when that defensive attitude might have ensured that that child was investigated? Those are the sorts of cases that you will have to answer. You will have to explain to my constituents, and others in similar situations, why you do not believe that it is reasonable to have this burden of standard of proof.

Dr. Buckman: I am not trying to defend inappropriate or unfortunate behaviour. In cases in which there is sufficient doubt about a diagnosis, the doctor has to investigate as far as they think appropriate. It is easy to say afterwards, when someone has been damaged, that they should have done something.

The difference is that in cases in which doctors do not need to do these things—and it is always a grey area—they will have to make a judgment on whether or not they proceed with an investigation. If there is any doubt about someone’s illness, clearly the doctor will proceed with the investigation. My point was that there will be the temptation to investigate more than there would have been otherwise. I am not talking about not investigating a kid with meningitis. Clearly, there is no argument. That case should be investigated fully and appropriately. It is in cases in which you do not think that someone has meningitis.

Q 133

It still does not fully explain why the standard of proof for doctors should be different from that of other employees. I still do not understand exactly what makes you special.

Dr. Meldrum: I do not think that we are trying to claim that we are special. I have tried to make that point quite clearly. Taking away one’s livelihood—that, in effect, is what losing your licence to practise means—on the balance of probabilities is likely to lead to more unfairness and a change from the present system. I am not here to answer for other employees or other parties. I would like to see the evidence base that such a move is going to improve things for the patients.  I mentioned at the beginning that for a system of regulation to work effectively it must have the confidence of those it is regulating. The vast majority of doctors get up in the morning determined to do the best job that they can. If they feel that they and their colleagues could be subject to a system that they perceive to be unfair—and we can discuss whether that is a valid perception or not—that is not going to be helpful to patients.

I am conscious that we have other areas to cover, and two other members of the Committee want to come in.

Q 134

I do not know whether I am in order here, but would it be helpful if the BMA or the GMC provided the Committee with recent statistics about the nature of the inquiries that doctors have been subjected to in disciplinary matters? I am beginning to find this a rather bizarre conversation. I would be interested to know how many patients have taken action against doctors for things such as over-exposure to scans. The Committee needs to consider the classifications of complaints against doctors and the outcomes of those different classifications. Before we consider the Bill line by line, I as a Committee member would find that information very helpful, wherever it comes from, so that we can focus on what, in the main, doctors are being asked to account for and the outcome of disciplinary action against them for those types of complaint.

We must not discuss the merits of the Bill just yet, but obviously if the witnesses want to comment on that, they can. If there is evidence that you wish to give, not necessarily now but subsequently—

Dr. Meldrum: We can look at that.

That would be welcome.

Q 135

I just wish to pursue the point, if I may. I shall paint a scenario that is not so distant in reality. An elderly, single-hander GP in a poor inner-city area, who does not have a high reputation with the primary care trust, will not retire and has a long list because the more patients they took, the more money they received. They have a lack of confidence in their own ability and therefore refer a very large number of patients to the hospital, which upsets the hospital. The logical thing to do in those circumstances would be to persuade that elderly doctor to retire, yet because of the shortage of GPs, particularly in unpopular areas, they do not retire. Of course, they have many of the type of patients who do not complain, because they do not have the skills that some of us here might have to make complaints. What would you recommend for dealing with that situation, other than what is proposed in the Bill?

Dr. Meldrum: It might take quite a long time to go through all the things, but I am as eager as you that we resolve that situation. I am certainly aware of the type of practice and doctor in inner cities to which you refer. There is a long legacy of under-investment in and a lack of support for such people.

The BMA is being portrayed as anti-everything that is in the Bill. We are not; we welcome a lot of things in the Bill. We first suggested a system of re-accreditation back in the early 1990s, so we are thoroughly in favour of re-accreditation, revalidation, re-licensing, appraisal of doctors, more support for doctors and the National Clinical Assessment Service to help retrain and support doctors. We are certainly in favour of not allowing doctors who are isolated and clinically detached not to be properly supported, and in some instances they must be encouraged. If they cannot be encouraged, they may have to have their fitness to practise taken away. We are not arguing against certain doctors losing their right to practise, we are questioning the mechanism for deciding who those doctors are and whether it is fair and appropriate and the profession perceives it as being so. I could talk a lot more about how we support inner-city practice, but that gives you a flavour.

Q 136

Is it not the reality that most doctors will carry on practising in pretty much the same way, because the difference is going to be very small? If GPs suddenly started referring people for a lot of tests, the referrals committee at the local PCT would be on to them like a shot.

Dr. Buckman: Ultimately, doctors would say that they were being more careful, because they felt that they should be. Nobody would do a test that they could not justify somehow, so I think that that is what would happen. The number of referred matters would go up. We can argue about whether that is a good or bad thing, but it is probably what would happen. That reflects they way that practice would go, and I advance that case to the Committee because I believe—I am sorry, the BMA believes—that we should raise it and bring it to your attention. But do I believe that people would behave hugely differently? No, at first they would not. They would start to feel more defensive, and that is the concern that we are trying to avoid.

Q 137

Dr. Meldrum, you mentioned that there should be an evidence base for changing. Is it not also up to the BMA to provide some sort of evidence base for staying as you are? Is there any evidence from other countries that have changed the system that there has been any change in practice?

Dr. Meldrum: Not a lot of evidence, as far as we have been able to ascertain. I accept that a lot will depend on how any system is seen to operate. We have discussed sliding scales, which I do not like for many practical and philosophical reasons, but unless there is clear and cogent evidence—and the more severe the case, the more clear and cogent the evidence must be—the profession will perceive it to be an unfair system. Part of the problem is that there is not much evidence. When there is not much evidence, I would stick with the status quo rather than make a change for change’s sake.

Q 138

You mentioned the sliding scale, and Dr. Buckman seemed to intimate earlier that on an alleged offence, the committee might think you needed 60 per cent. probability, but the evidence would emerge and you would have to change it. I do not think that it would be like that; we must trust the people’s  judgment, as the case develops, about whether more or less evidence is needed to make an ultimate sanction. Let us say you lost the case for a change in the standard of proof, is there anything that you would like the Bill to firm up—on the lines of a sliding scale or some such?

Dr. Meldrum: I am not keen on the sliding scale, but I am a pragmatist and a realist. If we lose, as I suspect we might, I want not only proper training for those who sit on panels, but the training to include how one operates, to ensure there is clear and cogent evidence—not hearsay or one person’s opinion against another’s—to convince people that what was alleged actually happened. Let us move away from the standard of proof. There should be clear and cogent evidence that that doctor has significant failings that would invite one to take away their right to practice.

Q 139

Is it just about the training of the panels, or does something more need to be written in stone?

Dr. Meldrum: It is quite difficult to put into words how you operate a system, but perhaps we could include in the Bill a review period, if there were a change to the civil standards, so that we could look at how the changed system was operating. We could try to obtain more evidence and consider whether it was doing what people hoped and intended it should do.

Q 140

Dr. Buckman, do you have anything to add to that?

Dr. Buckman: No.

Kelvin, would you like to take us on to the adjudicator?

Q 141

Indeed. Do you agree with the creation of a separate body—perhaps the OHPA—to oversee fitness for practice proceedings? What is wrong with the way the GMC has performed its role to date?

Dr. Meldrum: Strangely enough, the profession has been fairly ambivalent about this one. Comments range from, “No, let’s take the status quo,” to, “Well, we couldn’t be any worse off than we are now, therefore anything would be better than the present system.” I am conscious that the president of the GMC is sitting behind me—sorry, Graeme. Much of our uncertainty has been about the composition and operation of any new body, and we have always said that whether the body is part of the GMC or not, the profession must perceive it to be reasonably fair and independent. If it is to be separate from the GMC, that independence should be from both the GMC and the Government in order to secure doctors’ confidence in how it operates.

Q 142

Your GMC colleagues emphasised earlier that they are part of an entirely separate organisation and that you are effectively a trade union. I am trying to phrase this carefully: you are quite friendly with each other, shall we say? You are not hostile to each other.

Dr. Meldrum: On a personal basis, I hope I am friendly with almost everybody I come across. I am sure that, were Sir Graeme Catto able to say so, he would  testify that he has always been warmly acclaimed at BMA conferences. The GMC has, too. There has been a feeling over recent years that not only has the GMC got it wrong in terms of the public, but also in terms of the profession. That may be quite unfair, and I appreciate the difficult job it has and the difficult role it has to follow, but at the moment the confidence of the profession in the GMC is not what I would call high. I am not blaming the GMC for that, and a lot of it has not been of its making—it has been high-profile cases that have been seen to go in a way that the profession has felt has not been correct. Of course, on a personal basis we speak regularly to the GMC, but to suggest that the BMA and the GMC are cosy bed fellows would be stretching the truth rather far.

Q 143

I studiously avoided those phrases.

Dr. Meldrum: I am less careful about that.

Q 144

There has been a lot of talk of perception this afternoon. The perception is that you are in the medical field, that the Government are clearly not in the medical field, and that there is the independent world representing the public, which is again entirely separate. What is being proposed is seen as a move away from the medical world, with some people unhappy about the fact that it is moving towards Government and there is Government involvement. Would it not improve perceptions if there was a higher degree of independence?

Dr. Meldrum: It depends whose perception you are talking about. I think that if the body is independent both of Government and the GMC, there may well be that perception. I said at the beginning that the profession would want very much to see the proposed structure and operation of the independent body. We have some idea within the Bill, although there are some problems with that in that some of the links with Government, which Sir Graeme and Findlay referred to, are perhaps still too strong. There are certainly concerns about how such a body would be funded, following experiences with, for instance, the Postgraduate Medical Education and Training Board, which oversees medical training. The profession feels that it has almost had a licence to set its own agenda and its own fees without any check or hindrance, so there would be concerns about that. In terms of seeing a degree of independence, within the whole context of what the profession still believes is important to professionally-led regulation, and therefore a profession in some way having responsibility for its members and those it represents, I think that an independent body would be looked on quite favourably by the profession.

Q 145

What pressure have you put on the GMC on the issue of more independence from Government?

Dr. Meldrum: What pressure have we put on the GMC?

Q 146

You acknowledged in your comments that you have a political problem with your membership because it wants the body to be independent. If it is to be independent from the medical profession—

Dr. Meldrum: Are you talking about OHPA?

Q 147

The independent adjudicator, yes. If it was to be independent from the medical profession, the quid quo pro, as you implied, was that it should be completely independent from Government. I am asking what discussions or pressure you have put on the GMC in that regard.

Dr. Meldrum: I do not think that we have put any pressure on the GMC. I do not think that I quite said that it would be independent from the profession; I said independent of the GMC and independent from Government.

Q 148

So you had no discussions with the GMC through Laurence Buckman’s official role as your link-person over the issue of independence from Government?

Dr. Meldrum: The issue of the new body has been discussed; it would be untrue to say that it has never been discussed. To some extent we would share the GMC’s view about the potential for this body to be seen to be too closely associated with Government, but we have not put pressure on the GMC on that opinion. We would share their view on that point.

Q 149

We have six minutes or so left to get back to the delicious subject of responsible officers. You have made representations that the responsible officer function should be separate from the employment one, as regulation has to be independent of the employer if it is to retain professional confidence and credibility. It would be helpful, as we have been desperately trying to understand the matter during previous hearings, to know how you believe it will work in practice. If that is different from what you think would be ideal, we should like to know about that difference as well.

Dr. Meldrum: I shall try to be brief. We feel, as I think you feel, that some of it is perhaps a little unclear. What we have concerns about—some of those concerns were expressed earlier—is that if there is not that degree of separation of function, there will be quite considerable conflicts of interest about whose behalf the responsible officer is working on. To come up in five minutes with an exact plan for how we believe responsible officers should operate would obviously be impossible, but we can certainly try to furnish you with more details.

It comes back to the whole business of having confidence. We are aware of people—medical directors in trusts, or whoever—whose loyalties have been primarily to their trust. We are not saying that their loyalties should be to the profession, but they should be to the wider benefits of health care. It is about achieving that balance by a degree of separation of function and a degree of separation of loyalties from the employer, and having an effective and practical operation. That is quite difficult; I accept that.

Q 150

Do you feel that having a responsible officer who is also the medical director, for instance, might give you that problem?

Dr. Meldrum: It certainly gives the potential for that problem. I think that the vast majority of my colleagues who are medical directors would try to carry out that  function to the best of their abilities and to be cognizant of the conflicts of interest, but there are some who will be under considerable pressure from their employers to act in certain ways. How we achieve the system will help to find that out and prevent it, so that we do not get patronage or personalities coming into it. A lot of it will be in the overall governance of the system—trying to ensure that such things do not happen.

Q 151

In the previous hearing with the GMC, we raised a point about training. I am glad that came out, because I think that we shall have to pursue it. Although the GMC did not say so in their evidence, I got the impression that what lay behind their discussion was that there is a degree to which there is merit in having a medical director who is also the responsible officer, because they have the credibility of somebody who understands what it is like to practice medicine, and who is therefore a peer. That can help when it comes to making a judgment about somebody’s ability and so forth.

Dr. Meldrum: There is a huge overlap in function, too. When revalidation comes in, and as appraisal has come in, a lot of the information that people will be using to make those judgments will be information that they rightly have as medical director.

That is the end of our formal questions. We have a couple of minutes left if there is anything that you wish to say to the Committee before we conclude the session. You do not have to.

Dr. Meldrum: Obviously, we have concentrated very much on the standard of proof. I reiterate what I said at the beginning: we welcome a lot of the direction of travel. We want to weed out incompetent, poorly performing doctors, but we want to do so as much as possible in a climate of support and rehabilitation, because we do not believe that most doctors set out to be bad doctors; there are often circumstances that perhaps make it easier for them to be less than adequately performing doctors. We want to try to continue a move towards more local resolution and more support for doctors, at the same time coming down very hard on those few doctors who are not only performing poorly but are not amenable to or will not co-operate with remediation. We feel that that is the best way to protect patients.

I return to my earlier comment. A system that has the confidence of the profession is much more likely to encourage doctors to be honest about faults in themselves and colleagues. In my experience, that has always been the most common way that problems with doctors come about. We have heard about cases—Sir Graeme alluded to them—in which, after the case comes out, lots of people come out of the woodwork to say, “We knew for ages that he wasn’t a very good man.” We want a system that makes such people come forward at the beginning, which is why we want a system that has the confidence of the profession.

Thank you very for coming before the Committee and for the robustness of your replies.

Will the representatives from Which?take their place? If the witnesses are comfortable, we shall  proceed. Thank you for coming to see us this afternoon. For the record, will you introduce yourselves to the Committee?

Helen McCallum: Thank you very much for inviting us. I am Helen McCallum, the director of policy at Which? I am sure that members of the Committee will know that that is an independent charity supported by 670,000 members. It has been campaigning and researching over a number of years in the area of patient-focused health care.

Frances Blunden: I am Frances Blunden, principal policy adviser working on health issues. I have had a long-standing involvement pre-dating my Which? employment in regulatory issues. We are concerned about regulation delivering better health care rather than regulation for its own purpose.

Thank you very much. I ask Stephen Crabb to kick off.

Q 152

I shall start with a general question. Is it your view that the new integrated Care Quality Commission as set out under the Bill will help to drive up the quality of health and social care services in the United Kingdom?

Helen McCallum: Yes, it is. Which? is very supportive of a merged health and social care regulator. From the perspective of the user or patient, the mystery of the boundaries between health and social care has certainly been confusing for people. We think that it will provide a real opportunity to drive a more patient-focused approach, but we should like to see two things to strengthen that. We feel that it is an omission that the Bill does not set out clearly a distinct purpose for the body, which articulates its role as being primarily for the protection of patients. I do not know whether you would agree, but I am not certain that clause 2(5) cuts the mustard in terms of intelligibility to the average lay person. We would like to see something more along the lines of the Food Standards Agency, which has a very clear statement of purpose. It allows for the lay person to understand what the body is for. It allows the focus of the body to be clear to everyone and it allows for a revaluation of whether the body has, in fact, met the functions that it has been required to meet. That is one thing that we would like to see.

Associated with that is the fact that we would like to strengthen the Bill in terms of a duty to take on board and listen to the views of patients and service users. At the moment, the Bill states that the CQC will “have regard to” the views of the public. We are not sure that that is specific enough. Our research has shown that patients and service users have a number of issues that, for a variety of reasons, they are reluctant, unwilling or feel unable to raise. It is there that the real signals of what might be going wrong with the system are to be found. We would like the Bill to strengthen that for the CQC.

Q 153

Following that answer and having looked at your submission, we can see that you are calling for a duty on the Care Quality Commission to consult patients. It would appear that that has arisen as a result of the changes in the Commission for Health Improvement and ultimately the community health  councils, which were an avenue for such a voice. I do not know whether you feel that that therefore sits as a logical step in restoring some of that independent voice and the listening process. In order to meet that need, what would you do to amend the legislation in light of last year’s Local Government and Public Involvement in Health Act, which clearly intended to go some way down that track? From what you have said, I get the impression that you would like us to try and do a bit more.

Helen McCallum: Obviously I do not want a draft here, but we would like the wording to be changed from “have regard to” to “have a duty to consult with patients and users of services”. The duty being part of the change in that patients and users, as distinct from the general public, would be part of the point. Those are the two changes that we would like to see.

Q 154

I take it that your reading of the Bill included the schedules, where some of the duties are laid out albeit in a somewhat short form—but that is a matter for us to deal with at a later point. You are looking for a more expansive and persuasive whole approach to the range of duties, is that right?

Helen McCallum: That is exactly right. And to bring it in line with other bodies who have a duty to consult.

Q 155

I am pleased to see that you are calling for the CQC to have explicit responsibility for monitoring hospital food issues—you will be aware that I have been exercised about this over the past few days. The Government’s dignity in care agenda, as you know, focuses in part on malnutrition issues and it would be helpful for us to understand the degree to which that as an initiative, not a legislative approach, is not necessarily delivering in the terms that you wanted. How could you see this measure being able to deal with that, and helping to underpin a more deliverable approach to a concern that is widely shared across the House—I do not seek to make any kind of partisan point here.

Helen McCallum: Which? believes that nutrition and hospital food and social care services are as fundamental as cleanliness to the delivery of patient progress care. We are delighted to see that the Bill addresses those issues, and there is clearly a significant need to address those matters of cleanliness. The service that we have, has shown that patients and service users are concerned about the standard of food that they receive. That is not a question of whether or not they like it, but is about the nature of the food with respect to certain medical conditions and the extent to which people actually receive the food as it arrives. It seems to us to be another potential scandal waiting to happen, in the same sense that there has been a real consumer detriment around issues of inefficiency and cleanliness. We think that this issue is just as important, and it should therefore be stated as a responsibility of the regulator.

Frances Blunden: To add a bit of colour to what Helen has said, in an article for Which? magazine in 2006, we had one member who had spent four weeks in hospital. He had a broken jaw and should have been on a liquid diet, but most of the time when food came to him, it was not in an appropriate form. Yesterday,  Gordon Brown said that the NHS should focus as much on prevention as cure, and in that context, nutrition should be focused upon as something that helps people to get better. If someone spends four weeks not being able to eat, they will not be in a very good state afterwards.

Thank you, that is all very helpful.

Q 156

You have already mentioned the issue of cleanliness, and you are well aware that one of the public’s biggest concerns is that of healthcare-associated infections. Can I pin you down and ask you whether you think that the new powers given to the new commission will tackle those infections in a meaningful and successful way?

Helen McCallum: Yes, I think that on the whole we do. It returns to my point about triggers with regard to the regulator’s listening capability in receiving intelligence from patients and service users, who are often concerned about cleanliness as well as food and a variety of other issues about the organisation of care. Our research has shown that a significant number of those do not at the moment feel able to make the right representations in the right place. The powers are adequate, but we should ensure that the intelligence comes to the regulator in the most effective way. The best way to do that is for the regulator to have a duty and responsibility to enable people to “indicate” that there is a problem.

Frances Blunden: In this context, we can look to practical examples provided, for instance by Maidstone Tunbridge Wells. It was a year before the Healthcare Commission report came out and one presumes that there was a long lead-up time to the commission going in. Research that we did for the consultation on complaints reform last year shows that fewer than one in three people who felt that they had some cause for complaint actually made a complaint, so it is important to learn to listen and to find ways in which to get information into the system and trigger things quicker.

Q 157

So do you think that it is to do with the system rather than the new powers specifically? We were interested to hear earlier from the Healthcare Commission, which said that it felt that new powers were not necessary and that it had not asked for them. Do you think that it is not so much to do with new powers as with the system? Do you think that the new body—the new commission—will be helpful?

Helen McCallum: Yes. We believe that the issue is not so much the powers, but the means of indicating that there is a problem. The issue is the upward feedback from the local source, which is why the regulator will need very strong mechanisms by which to listen to patients and service users in addition to satisfying, obviously, the thoughts and needs of the general public.

Frances Blunden: That said, it is no good finding things out if nothing is done about them. Ultimately, people want the issues they raise to be sorted out. Certainly, through our impatient for change campaign, we highlighted the good focus on sorting out hospital  trusts’ financial problems in the past few years. We would like the same kind of focus on the quality of experience, particularly on cleanliness. However, closing down a local hospital or even a local ward is not necessarily the solution because it might leave local people without an alternative—fines on services could, potentially, end up penalising other service users. There needs to be a more sophisticated consideration of what penalties and sanctions are available to ensure that standards are met and that they are of a high quality.

Q 158

Do you think that a care home secretary will be sufficiently involved? Everyone talks about hospital-based infections but, actually, there has been a lot more exposure to care home-based infections.

Helen McCallum: We are tending to answer on the basis of health care because our most recent research has been into users of health care services rather than social care services. However, the same thing applies—we are concerned that there is sufficient root for indicators to trigger action in the regulator.

Q 159

To play devil’s advocate on the duty issue, the Healthcare Commission would say that most if not all of its recent major inquiries resulted from patient complaints—I am thinking of Cornwall, Stoke Mandeville, and Maidstone Tunbridge Wells—or from patient complaints and a combination of data. Is there a danger that by placing a duty on the commission, you could create capacity issues for the regulator that might mean that it is less alert to any patterns of problems that emerge. Such patterns have spurred its inquiries to date.

Frances Blunden: If you don’t find out about an individual case, you will not find the patterns. Identifying individual situations will feed up into those patterns. I do not see how you could do one without the other.

Helen McCallum: The duty would help to give confidence in the new regulator that consumers and patients were genuinely being listened to. It would also, in some sense, create systematic feedback as well as a reliance on patients themselves to have the confidence to make a complaint. Our research shows that at least one third of those who wish to make a complaint, or feel that they have grounds for making one, do not in fact do so.

Q 160

Do you think that the Healthcare Commission does not listen to patients?

Frances Blunden: It has a number of initiatives, and the indications from CSCI is that it is trying to listen to patients. However, when you create a new body, it is important that it is given those duties at the outset. This is the third major reorganisation of heath and social care regulation since 2000. It would be really good to get it right. It would be good, I am sure, for the providers and the regulators. It would certainly be good for the public to know who to go to, if they have concerns, and who they can trust to set standards.

Q 161

Is not one of the difficulties with individuals making complaints—I am thinking particularly of those who have had a hospital stay—that a large percentage of the hospital population is elderly  and many have nobody to articulate their problems on their behalf? Some of the most serious problems concern the care of the elderly. The fact that one third of people do not report their problems very often is because they cannot articulate them, owing to their age, frailty, illness or whatever. It might simply be that no one comes in to see them who is alert enough to make representations on their behalf. Do you think that we need to do more in caring for the elderly in hospitals and in care? What is your view on a commissioner for older people?

Frances Blunden: Returning to our research on why people do not complain, a large number did not do so because they did not feel that it would make any difference—that accounted for more than half of those who did not complain. Nearly half wanted to forget about the experience and another 40 per cent. or so did not want to make a fuss. Those surveyed could choose more than one answer—in case your maths worked out that that added up to more than 100. For a number, the process was too complicated or they did not know how to make a formal complaint. However, of most concern—this is reinforced by a report produced by the Healthcare Commission earlier this year—about one third feared that it would jeopardise future care. Those reasons need to be kept in mind. Importantly, we found no such substantial differences, although that might be a result of limitations in the survey results—80-year-olds were not necessarily interviewed.

We have not talked about a commissioner for older people and it is not something that we have necessarily thought about. Certainly our view is that older people in hospital are very vulnerable, but actually even younger people and your classic middle-class individual can end up being very vulnerable in hospital as well. We need to think about how needing health or social care can make anyone very vulnerable. Discussions about focusing just on vulnerable adults can negate that. We need to think about it much more widely.

Q 162

May I ask as a supplementary whether you have considered end-of-life issues? I am not suggesting for one minute that complaints about something that has caused the end of a life might come forward. However, they will concern issues involving the care of those nearing the end of their lives, whether they are in hospital or moving to a nursing home. As MPs, we hear of such issues almost on a daily basis. Do you feel that there is a need for more consideration of that group of people and of the care of people nearing the end of their lives, who would of course include mainly the elderly?

Frances Blunden: We have not done any work on end-of-life care. Other organisations in the voluntary sector are more focused on that issue. Our focus tends to be more general. Certainly as part of the impatient for change campaign, we have received a huge number of poignant stories about, for example, carers’ experiences of watching their loved ones die in absolutely degrading circumstances. That was not happening 10 or 100 years ago but in the past year.

Q 163