Clause 104

Health and Social Care Bill – in a Public Bill Committee on 22nd January 2008.

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Standard of proof in fitness to practise proceedings

Amendment moved[this day]: No. 50, in clause 104, page 51, line 11, after first ‘to’, insert ‘the finding of facts in’.—[Mr. Stephen O’Brien.]

Photo of Derek Conway Derek Conway Conservative, Old Bexley and Sidcup

I remind the Committee that with this we are taking the following amendments: No. 51, in clause 104, page 51, line 12, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

No. 57, in clause 115, page 62, line 30, at end insert—

‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 4:00 pm, 22nd January 2008

I am very flattered that what I was saying this morning was obviously of such intense interest and attraction that all the Labour members of the Committee have bothered to turn up again to hear what I say. I am most grateful to them for coming.

This morning we were going through our amendments to clause 104 on standards of proof, and I had just reached my final point, which dealt with some of the oral evidence from Dr. Laurence Buckman and the British Medical Association about defensive medicine. I explained that he had not made the case as effectively as some of us thought he might have done, given his justified concern that doctors would no longer be practising the best health care for their patients, but rather the best health care balanced with the best methods for avoiding any accusations that might end up in a fitness to practise hearing.

When I say “justified concern,” I mean a concern that we all have to take seriously, because anything said by the body representing doctors about the way they may practise is something we need to note with care. This is not a matter of contention in terms of the principle of moving the standard of proof; it has not turned into something on which the Committee is seeking to divide, but we owe it to the evidence we were presented with to look at it with some care.

Photo of Anne Milton Anne Milton Shadow Minister (Health)

Although I recognise that the BMA did not represent themselves terribly well during the evidence hearings, the point about defensive medicine is important and it is a concern. The Royal  College of Obstetricians and Gynaecologists has said that the number of junior doctors wanting to go into obstetrics has dropped to an all-time low because of fears of litigation; in fact, one of the reasons cited for the increase in Caesarean sections is that doctors are very nervous about litigation.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to my hon. Friend, who is right to raise that point. It highlights the difficulty for all of us—particularly when dealing with new legislation—in understanding how much it arises because of specific items such as the one we are considering and how much because there has been a general move toward what is most easily defined as a compensation culture, where some may be driven by contingency legal fees or the purposes of the settlement value or whatever it may be. I have some grave difficulties with that and regret that we have moved to such a state of affairs, but there we are: the general and the specific are often very difficult to disaggregate. We all need to be concerned if there is a trend towards more litigation and it is having an effect on professional practice.

The concern can range from lowering the level of risk when clinical decisions are made to doctors prescribing otiose procedures to hedge themselves effectively, with the NHS footing the bill all the while. Chapter 4 of the “Trust, Assurance and Safety” White Paper touched on the issue, stating:

“This argument rests on the misapprehension that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions.”

The counter-argument is that health professionals, with high professional standards of commitment to their patients, would guard against that risk. Where there is doubt,

“health professionals, usually working within a team of other professionals, would generally make such decisions in consultation with their colleagues to ensure a consensus of expert opinion and agreement. In addition, where significant doubt or concerns remain about a procedure, intervention or prescription, clinicians are professionally obliged to obtain informed consent from their patients...In emergencies, such an approach may not be possible and the judgement of the individual clinician in such a situation will be paramount.”

Regulators and panels would take that into account. It would be very helpful if the Minister could give the Committee any further insight on the issue. I recall the intervention of my hon. Friend the Member for Tiverton and Honiton this morning, so the Minister’s comments may be helpful to ensure that we do not regard the issue merely as an irritant in our considerations, but to try and bring things to the level of reality. I do not want to disclose the name of the doctor who wrote to me about the defensive medicine issue, but he said:

“To illustrate this, today I saw 30 patients in surgeries and I have made 3 referrals from this day's work (which is about average for me). That is a referral rate of 10%. Let's say I get nervous (which I will) and, as a conservative estimate, I start on a day like this to refer 4 patients. That is an increase to a referral rate of roughly 13%. As an increase in my workload it is negligible. However, the hospital sector now has 4 instead of 3 referrals, an increase of 30%. Imagine a 30% rise in outpatient work, X-rays, scans, and blood tests across the board, because GPs need to manage the risk that a political appointee will find them ‘probably’ incompetent.

There may be other hidden costs. We may prescribe more. Many GPs nearing retirement age will bail out now, rather than face such a hostile future.”

That may be the type of sentiment that the BMA was trying to reflect in evidence to us. To be honest, I am not persuaded that view will drive the way the system will work, but as legislators we have to take what the BMA has presented to us seriously. We need to hear from the Minister that he and the Government have carefully thought the matter through and how they will make sure that moving the standard of proof does not lead to unintended consequences—although, because we are debating them, the consequences could not possibly be said to be unintended. The consequences would be intended because, having considered the clause, we shall definitely want to pass it—so we want to make sure that no intended consequences lead to unfortunate outcomes.

With that series of arguments, I propose the amendments in the group. I look forward to what the Minister has to say, in what is after all a broadly consensual area. However, the Committee needs to have on record a lot more detail of what lies behind the proposals.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

Most of the debate is a stand part debate as well, so my comments are generally on the whole principle of the change to the standard of proof from criminal to civil, rather than specifically on the detail of the amendment. I fully understand the concern of the doctors. However, many professional regulators already operate to a civil standard—my own profession, for example, but many others as well.

I am not particularly aware of cries of injustice over the outcomes of determinations of fitness to practise. That is only my understanding, but I have been told that the panels need a great degree of certainty before coming to the decision to apply the ultimate sanction. However, there are slight problems with some of the associated changes in the Bill, which removed the finding of facts, separating them from the decision as to which sanction should be applied. I want to talk about that a little more later on.

There appears to be lack of certainty about whether some sliding scale of proof applies. Assurances from the Minister before the Bill were that the rules would be applied flexibly, but that does not, sadly, inspire confidence—it is not lack of confidence in the Minister, but in the consistency of the whole process. In addition, it has to be noted that the profession appears to be divided. The General Medical Council will be introducing the changes anyway, whatever we decide in the Bill, but the BMA is opposed to them. I suspect that I am not alone among members of the Committee in receiving numerous individual representations from doctors who feel aggrieved. To say that they feel “got at” is a bit dramatic, but they think that they do a good job and that somehow there is a small risk that, just by doing their job, they may get something wrong one day and lose their livelihood. I am not sure that will happen in practice but I can understand the concern.

In oral evidence the BMA said that it was up to the Government to provide an evidence base as to why the changes should be made. I asked the BMA for evidence to support its claim that various things would go wrong and that there would be all sorts of consequences. I have yet to receive any evidence that is concrete proof that the change will lead to the fears expressed by the BMA becoming a reality.

What causes me slight concern is that clause 104 (4) says that the decision—if the clause is voted on and goes ahead—can be amended only by primary legislation. If it was fairly obvious that we had got it wrong, although I do not think that will be the case, it would be helpful if there were powers to enable us to make a quicker reversal by use of secondary legislation.

There are also concerns that, because of the lack of transparency over consistency, decisions could be made that would not inspire confidence in the procedure. The proposal for a legally qualified chair in some of the more difficult cases will probably help to supply some of that consistency. In the light of our debate this morning it would be helpful if the Minister could reflect on that point.

Concerns have been raised that there is likely to be considerable additional delay and expense. There are also concerns that there may be more legal challenges to protect doctors’ interests. If that were a fair assessment of the situation I do not think it is something to which we would happily say yes.

The Medical Defence Union provided some interesting food for thought. It claims:

“The argument that the public interest justifies a switch to a lower standard of proof because public safety would be better safeguarded is flawed...It cannot be in the public’s, patients’ or profession’s interest for good doctors to be found impaired when they are not. A lowering of the threshold of proof risks such unfairness and will undermine confidence in the regulatory process.”

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Does the hon. Lady agree that the other reason why the point she is making is valid is that in essence the system will mean that the more serious the breach by the doctor the higher the standard of proof will be? When the patient is most at risk, the standard of proof is likely to be closest to “beyond reasonable doubt”.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

The hon. Gentleman makes an interesting point but I will not be sidetracked by it at the moment. One of the points raised by the MDU is that the standard to be applied needs to be clear at the outset of the case. We heard some oral evidence to that effect. At the time I was not sure if I agreed. The MDU says:

“The prosecution, defence and the FTP panel need to know the standard to be applied at the start of the case. It is against this standard that the evidence to be called will be assessed. However, in FTP hearings the fact-finding stage precedes the sanction stage. In many cases the FTP panels will not know at the outset whether the allegations, if proven, are likely to result in suspension or erasure. How then will they know whether they should be applying the highest civil standard?”

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 4:15 pm, 22nd January 2008

The hon. Lady is wrestling with some of the issues with which we have had to contend. It is important to get things right because many people will study this. It is clear that we agree in principle that the standard of proof should change from criminal to civil, and that there will be a differential standard within civil proceedings—we had some testimony on that matter. However, amendment No. 51 was deliberately designed to address some of her points. It suggests that there should effectively be a criminal procedure coupled with  a civil standard of proof. That would mean that if, at the outset or during the course of a hearing, it were to become clear that the consequences were much worse than people originally feared or thought possible, the outcome could be more draconian.

A criminal procedure would mean that the prosecution, for want of a better word, would have to lay out its case in order, as a matter of justice, so that the defence would have sight of the case against it and time to prepare before answering it, whether or not the defendant were put in the witness box, which is quite a big issue. That is why we would recommend amendment No. 51, which would overcome some of the hon. Lady’s concerns through procedure, rather than by affecting the standard of proof.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I thank the hon. Gentleman for clarifying the full implications of his amendment. I have no problem with the basic principle, but it is important to reassure the profession that people will be heard fairly.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am conscious that my interventions are long, but these are very detailed and complex legal issues. Amendment No. 51 was tabled because those who are accused of something are better protected by the criminal procedure. A prosecution then has to lay out its case, and it is up to the accused to decide whether they are guilty or not guilty and, if they are the latter, whether to put themselves under oath as part of their defence. That is different from criminal court proceedings, and some things would have to be amended, but that would give the professional in the dock a better ability to decide whether they had a proper defence against the charges, rather than being ambushed during the hearing, which would cause anxiety and also lead to the uncertainty of not knowing the standard of proof that was to be satisfied.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I was not disagreeing with the hon. Gentleman, but merely reiterating that the confidence of the profession is very important. It is one thing to have the confidence of the regulator, but regulators are not always best loved by their professions because they are sometimes regarded as policemen.

What would the change to the civil standard achieve? Its purpose might be to lower the threshold for findings of impairment of fitness to practice, thus bringing more doctors under the FTP panels, yet the GMC itself does not believe the change would achieve that result. A change to the civil standard would import some disadvantages without meaningful benefit. Will the Minister reassure us that this is not just a box that can be ticked as a result of the Shipman inquiry, and that it will improve matters for patients in the long run? Ultimately, that is what we ought to consider. While I do not have a huge problem with the proposed change, I still have to be convinced of the benefit to patients.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I recently received a briefing note on behalf of representatives of health care workers below the level of doctor: nurses and other staff in the health sector. For the benefit of  my hon. Friends, I think that it is important to put on record that they are concerned about the aspect of the Bill relating to fitness to practice proceedings. The Royal College of Nursing and Unison are concerned about retaining confidence in the system. On their behalf, may I ask the Minister to give us an assurance that a sliding standard will be applied to all fitness to practice proceedings that will be commensurate with the gravity of the allegation and the seriousness of the consequences? It might be that these organisations will be seeing the Minister privately. They might have already seen him privately—I do not know. However, I thought it was important to put this on record.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The hon. Gentleman raises an important point of principle. We heard a significant assurance when the eminent lawyer, Lady Justice Smith, gave oral evidence. She said that that was integral to the current common law and, indeed, to the practice of various tribunals that are already in existence. What is not in the Bill, however, is any reference to the sliding scale. There is just a move from criminal to civil. The aim of these amendments is to reflect a gradation in the civil standard of proof that would meet the requirements of the constituency that he is seeking to represent. I hope that he will realise that the important point of principle is the need to get some sense of the sliding scale reflected in the Bill.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I am grateful to the hon. Gentleman for his helpful intervention. I am not specifically seeking anything in the Bill, but I want an assurance about these matters from my hon. Friend the Minister. I hope that my hon. Friend will take note of representations made both in Committee and elsewhere before coming to a view on the final wording of the Bill before it becomes law.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I congratulate the hon. Members for Romsey and for Eddisbury on making a better job at putting forward the BMA’s case than it managed. I think that that would be the universal view of the Committee.

I was slightly confused by what the hon. Member for Romsey said. She started by saying that her own profession used the civil standard without any problems, and finished by asking why we were bothering to do this at all. This was one of the main recommendations of Lady Justice Smith that came out of the Shipman inquiry. The reason for it, however, is that which she and even the GMC and others gave in our evidence sessions. At the moment, because we have the extremes of either something drastic happening, or nothing happening at all, there is a reluctance to intervene early in a case. An example would be Shipman, or cases in which someone’s professional conduct might not be serious enough to warrant their striking off, but when another form of intervention and the flexibility to intervene in another way, helped by the civil standard of proof, might prevent something much more serious from happening. This relates to a question asked by the hon. Member for Eddisbury about the numbers of cases that we expect the independent adjudicator to see.

With this system and with the responsible officers in place locally, fewer cases should need to go to adjudication in the end because more of them will be nipped in the bud. As Sir Graeme Catto said in evidence, more cases will be dealt with locally and will not have to be escalated up. This is also about increasing public, patient and employer confidence in the regulator’s ability to tackle all types of cases, creating a system that is consistent across all health and social care, and setting up a framework that will encourage employers to act more proactively when previously a practitioner who might have needed help has evaded action by the national regulator. This was one of Dame Janet’s main recommendations. In our evidence session, she said that it was the right thing to do because

“we are talking about a protective rather than criminal jurisdiction”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 40, Q71.]

The GMC is already moving towards the civil standard of proof. Professor Sir Graeme Catto, in his evidence to the Committee, stated that six of the regulators had already moved to the civil standard, that it was working well for them, and that he did not see any reason why it should not work well for doctors. Although the BMA has managed to generate a few letters to members of the Committee and other Members of Parliament, Sir Graeme told me that the GMC itself had received only 50 letters from doctors protesting about a move to the civil standard of proof. The implication was that that was not very many.

It is right that there is no sliding scale in the Bill. That will be a judgment call for the panel, using the civil standard as described by Lady Justice Smith, which can be applied flexibly and can take account of the gravity of individual cases and how serious the outcome of proceedings might have been for the individual. More serious matters would require a heightened standard of proof, as is the case now. The courts recognise that the civil standard is a flexible standard that should be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving it.

Amendment No. 50 seems to be an attempt to clarify in the Bill that the civil standard of proof would be applied only to the finding of facts in FTP proceedings, not other parts of proceedings. However, we do not think that that is necessary because the clause can apply only to the finding of facts. The standard of proof is applied by the panel or committee when it is considering the evidence presented before it, and the evidence relates to whether the alleged events occurred.

The hon. Member for Tiverton and Honiton asked whether guidance would be issued to doctors to help them to get used to the new standard. We expect the GMC to issue guidance on this. The Office of the Health Professions Adjudicator will have a duty to make information on its functions public, and the Council for Healthcare Regulatory Excellence could have a role in making sure that there is clear guidance, and we have already asked it to look at doing so.

The hon. Member for Eddisbury raised the issue of consistency in applying the civil standard. We have also asked the CHRE to look at how it can ensure that there is consistency. Regarding appeals, individual practitioners will be able to appeal to the High Court if they feel that they have been unfairly treated.

Amendments Nos. 51 and 57 would place a new requirement on the regulators to ensure that their procedural rules are in keeping with those used for criminal court cases in certain circumstances. We have a problem with that because it would completely change the way in which regulators approach their hearings. In practice, that would mean that matters such as disclosure, jury trial, representations as to venue for hearing, rules relating to evidence of character and hearsay evidence would be subject to the types of provisions that apply to the criminal procedure.

If we accepted the amendments, regulatory bodies that have been successfully using much simpler approaches in their FTP hearings would find that they had to use more adversarial, time-consuming and costly approaches with no added benefit to the individual practitioner or the public. It is important that we emphasise that the hearing panel is undertaking a protective role. It is not acting as a criminal court or applying the criminal law. The purpose of the regulatory action is to protect the public, not to punish the practitioner, and that is almost exactly what Lady Justice Smith said in her evidence. It would therefore be wholly inappropriate to impose the rules of criminal proceedings on professional regulatory proceedings.

I congratulate the hon. Member for Eddisbury on doing a better job that the BMA of trying to make its point about defensive medicine. I found it very difficult to appreciate the exact point that the BMA was trying to make, but I think it was that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions. We do not believe that health professionals will behave in that manner as a result of the change. We are confident that their high professional standards and commitment to patients will guard against the risk. However, when there is doubt, uncertainty or significant risk in making such judgments, health professionals who usually work in a team of other professionals would generally make such decisions in consultation with their colleagues to ensure that there was a consensus of expert opinion. In addition, when such circumstances exist, clinicians are professionally obliged to ensure that they receive informed consent from their patients. I hope that my comments have reassured the hon. Members and that the hon. Member for Eddisbury will see fit to withdraw the amendment.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 4:30 pm, 22nd January 2008

I listened carefully to the Minister and I am grateful that he took us carefully through those items. I am glad to hear that the CHRE is looking at the potential worries about the question of fairness both between hearings and within hearings, where there might be different applications of different standards by different chairmen. The debate on clause 93 about the potential for a legally qualified chair of the panel could be important. The Minister has undertaken several times to go away and think that through, and we will possibly revisit it on Report. I would welcome that, and the need for it is reinforced by what we have just heard. There is an expectation that there will be fewer fitness to practise hearings, and if the chairs were legally qualified I suspect that the hearings would rattle on nicely and be unlikely to be lengthier.

I emphasise a point that the Minister did not touch on, as I think it is vital. It was also brought up Lady Justice Smith. For the chairmen—legally qualified or not—to work well, particularly given the approach that he is taking on procedure, training will be key. If training is seen as a priority, and that is vital, I will be happy.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I apologise for omitting to respond to that. I can reassure the hon. Gentleman that we have requested advice from the CHRE on how to make the transition to the civil standard as smooth as possible, including the need for training and any other needs of panel members. We have also asked for advice on changes in the procedural process and the administrative arrangements, and on how best, in the council’s opinion and that of individual regulatory bodies, any difficulties in the areas that he has mentioned can be overcome.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful for that. It is helpful. I noted that the Minister was not keen to adopt the criminal style of procedure, notwithstanding application of the civil standard of proof, to give better potential protection to professionals who find themselves under scrutiny. However, I will not press that point.

I hope that as a result of the debate the Minister and his officials will reflect that it was not a question of tilting towards—although I fully understand the phrase—making sure that we are focused on protecting the public and therefore not seeking to punish the practitioner. I practised at civil courts and in arbitrations for some years. The point about the criminal process as opposed to the civil standard process is that there is always the hope that during cross-examination, despite the rules of discovery, one will end up with a wonderful nugget of a time bomb or an ambush in order to achieve success of the law. The whole point about the criminal procedure is that it is up to the prosecution to lay out its case so that the defendant can make sure that he is fully aware of what is against him and can prepare to make the best defence available.

The protection of the practitioner—in fact, the whole process that we are discussing—is secondary to protecting the public. That is consistent with what Lady Justice Smith was absolutely determined to do as a result of her reports on the Shipman inquiry. To make sure that we hold on to her priority, it is right that we enable a sense of fairness and justice in the process with the profession. That is the best answer to the BMA’s issues about defensive medicine. While I am grateful for the Minister’s flattery about making the case, I was as unpersuaded as he was about that particular risk. He also read out what I had cited as good reasons for not accepting that evidence. The BMA raising the issue on behalf of practitioners made it incumbent on us to look at the matter seriously, which we have done. On the basis of our discussion, it is wholly appropriate to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 ordered to stand part of the Bill.