The clause sets out the framework for responsible officers, so obviously many Committee members will have been waiting with bated breath to reach this crucial aspect of the Bill. Amendment No. 54 would ensure that the responsible officers were clinically qualified professionals—to be determined by regulations. Responsible officers should be medical professionals rather than health care managers or management consultants, for example. Doctors have also expressed concern that responsible officers should not be the same medical directors of primary care trusts under whose authority the various doctors work.
This discussion should be framed by the concerns raised by Lady Justice Smith during her oral evidence. She told us:
“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.”
“I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42-43, Q83.]
If PCT medical directors are also the responsible officers, it will give them too much power over individual doctors, and they will have the power both to discipline and to sack the doctors on their patch. PCT medical directors are already busy, and they have many priorities. In her oral evidence, Lady Justice Smith said:
“I am really unhappy about that for several reasons...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”.
Her desire for making it a separate role arises partly out of her concern that
“the revalidation process should be clear and understood...it should be summative and a proper test, and...it should not just involve shuffling pieces of paper around and rubber-stamping them”.
The Medical Protection Society has made the same point.
The role of the responsible officer could cause serious conflicts of interest. Suppose that a local doctor prescribes an essential cancer drug for a patient, which puts strain on the PCT’s budget, and he suddenly finds himself at the wrong end of an inquiry by the local GMC affiliate medical director. How would the GP know that the inquiry was genuine rather than contrived? How would the GMC affiliate medical director know that his regulatory decisions were not being influenced by pressure from the PCT chief executive? Lady Justice Smith noted the reverse situation. She said:
“There is a real tension between, on the one hand, an employer’s desire to keep all of his employees 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.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 43, Q83.]
We discussed that matter when we took oral evidence and it is important to get the clause right. Within certain disciplines, particularly in hospitals, there are often shortages of doctors. Because of the need to meet targets and keep patient throughput, the medical director who undertakes revalidation is going to be in a difficult position. He must do his job as required by the primary care trust, or according to the Government’s requirements sent from on high, and, at the same time, he must be responsible for revalidation. One could see all sorts of tension arising in such a situation. I am talking narrowly about doctors in a narrow sense, but there are many different types. The Government need to get the measure right, so that the pressure I described does not end up on medical directors. Their role should be clearly defined and the problem I described, which was clearly identified in the oral evidence, should be resolved in the Bill.
I saw the Minister nodding when my hon. Friend talked about getting it right, so, in that sense, we are at one. My hon. Friend highlighted the fact that every system in the world and every law that we pass here deals with human motivation and is man-made—nothing comes down from on high. However professional, experienced, responsible or extraordinarily intelligent the people we are talking about are, we cannot escape the fact that people are influenced by motivational factors.
The only way to address my hon. Friend’s point is to take an extreme case—it is absolutely germane to what I am saying. We might find such an event inconceivable, but, tendentiously, we live under a regime of top-down targets rather than the bottom-up approach that we keep urging the Minister to adopt. Targets drive the performance criteria and measurements. However, anyone in any walk of life who is involved in management knows that what one measures is what one gets. If measures and targets are put in place, and if, as in so many cases, they have year-end performance bonuses and money attached, and if one is desperately hoping that by achieving those targets, one will have a sufficient bonus that means that one can at last put the new kitchen in place, one would have a motivation to aim for the targets. That is what targets are for. However, if that motivation runs counter to the shortage of doctors in hospitals, for instance, we end up with a tension. The latter situation might lead to a target being missed and a bonus not being paid. Whatever explanations may be given or whatever exceptional circumstances might be pleaded at the time that that is negotiated, on a human resources department basis, it is insufficiently clear in the Bill.
My hon. Friend pointed out this issue in her very timely intervention, and in reply I referred to an extreme circumstance, which I obviously do not believe would or should happen. None the less, in doing so I have rather put it on the record that it is not completely beyond the realms of possibility. That highlights the issue that we are trying to address here. I accept that the Minister is trying to push this issue forward, so that we get it right. However, it is only right that we understand the tension that we are up against.
It is probably as well to remind ourselves that Dr. Meldrum of the British Medical Association said:
“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.”—[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 67, Q149.]
Primary Care Trust medical directors are employees of PCTS, so their impartiality in the regulatory management of local doctors cannot be guaranteed; it is very much of a piece, this. The responsible officer should be completely independent of the local PCT. That way, he or she is more likely to command the trust of local doctors, which, in my view, is an absolutely essential element of making this process work well and ultimately making the scheme more successful. I hope that the Minister will take the opportunity to confirm whether the medical directors will be, or are likely to be, the responsible officers, and also whether they will be the GMC affiliates.
During his oral evidence session, the Minister, under questioning from my hon. Friend the Member for Guildford, said:
“We are not making a specific ruling as to who it should be, just as to what qualifications the person should have. We think that responsible officers must be senior doctors with a current GMC registration.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]
I think that we would all sign up to that. He continued:
“There was much discussion on Tuesday as to whether it should be a medical director, and that would be perfectly appropriate. In fact, a lot of the good medical directors are, in practice, already doing this job on the ground. Yet we are not saying that it has to be a medical director.” ——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]
So, I hope that the Minister will take this opportunity to clarify that his statement means that there will be true freedom at a local level to choose not to have the medical director as the responsible officer and that the PCTS will not be encouraged, or even coerced, either by policy or funding issues, to merge the two roles.
It is that funding issue that really needs to be thought through, so that there are no perverse incentives, or indeed target-driven issues, that then drive behaviour, both in terms of who should be the responsible officer and what conflicts they may feel they are facing, even accepting that the extreme example that I gave, by way of argument, is highly unlikely to happen in practice; I would like to believe, anyway, that it is unlikely to happen.
I was also concerned about another matter. The Minister responded to the point made earlier by Findlay Scott during the GMC’s oral evidence that
“adequate resources must be provided.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 53, Q107.]
In response, the Minister stated:
“We are making provision in the Bill, if necessary, for them to take on assistants and extra resources to help them do the job if they want somebody.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q243.]
The Minister refused to allocate extra money to this process, instead choosing to suggest that
“We are giving extra money to PCTs all the time.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q244.]
With respect, I did not think at the time that that was an adequate response and I hope that the Minister will take the chance now to flesh out what he thinks will actually be the case.
Not only will this measure impact on how PCTs will choose to interpret the responsible officer role, but it goes no way to addressing the concerns about training. I accept that the Minister gave me a positive response when I raised the issue of training before, so I hope that I can be optimistic about the way that he tackles the issue in this context.
I raised the issue of training when the Minister was giving his oral evidence. I should be grateful if he would tell the Committee, first, who will be funding that training; secondly, when he expects the
“expert advisory group we are developing”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q245.]
to agree the “competences”; thirdly, when he expects negotiations with providers of training to begin, and finally, how much he expects those contracts to cost.
Lastly, during the GMC’s evidence, the Committee also touched on the issue of soft information sharing. I do not want us to get into all the jargon that surrounds data sharing, but I suspect that this matter will be debated by others at a later stage. I think that the Liberal Democrats have tabled an amendment to clause 112.
However, there are concerns that if the responsible officers, without the employee’s knowledge, share information that is unproven, in the sense that there has been no investigation, or damaging, in the sense that it might affect an employee’s reputation, that could be the basis of a claim that the employer had breached an implied term of trust and confidence in their contract. Those points often lead to the most contentious and litigious issues, so it is advisable that they should be avoided if possible. If we can design measures to avoid them at this stage, we will have done our job better.
The establishment of responsible officers at local level is an attempt to have greater local resolution of problems, and we generally support that broad aim. However, I concur with many of the reservations highlighted by the hon. Member for Eddisbury. I do not want to repeat too much of what he said, but even as he was talking, more questions were being asked in my mind. For example, it is all very well having a responsible officer who might be a medical director or a director of PCT, but a portion of the work force might do local work or work across PCTs, and I am not entirely clear who will be the responsible officer in that case.
If a problem is highlighted in an area, will the responsible officer deal with it, or will an individual living in a certain area have to have an overall responsible officer. I ask that because I am aware that the responsible officers for some of the GPs in my constituency would be in the primary care trust, but a small number work a couple of sessions at the local hospital in specialisms where there is a demand. If there is a problem in the hospital, will they have to answer to the responsible officer in the hospital, as it is not clear what will happen in those cases or how those people will join up the thinking if there are concerns about an individual?
There is also a problem with responsible officers having powers to put recorded concerns on a doctor’s record. Those concerns need to be substantiated in some way to avoid personal vindictiveness—let us not pretend that it does not happen—and so that there is a right of challenge by the individual, because a doctor could almost be held to ransom by the threat of having something put on the record.
There can be disagreements about the way of practising, and I can think of a local case where there was a big disagreement between a consultant and a couple of other consultants concerning procedures that he was using. It was difficult to say who was right and who was wrong. One consultant was convinced that he was right and had good evidence to prove his practice was appropriate, and the other felt that the behaviour of consultant A was irresponsible. I do not want to go into too much detail on that, but in such cases it is not clear who provides the ultimate sanction. One of the problems in that case was closely associated with the medical director, so where is the right to go elsewhere if someone is unhappy?
With regard to training, it is highly likely that a responsible officer could recommend that an individual whose practice, although not dangerous, was thought to be of concern and was in need of certain training if a few alarm bells had been sounded. We all know what happened to training budgets last year. Within a primary care trust, would there be tension between the financial pressures? Would a responsible officer in a senior position feel that he had a duty to balance that in some way?
I reiterate my interest in that my husband is a medical director and, arguably, a responsible officer—before their invention. The hon. Lady has highlighted the crux of the problem, which is the tension between competency—that is what the responsible officer will be looking at—financial pressures and the resources available. During the evidence session we did not hear from the Minister how he intends to resolve that. Does the hon. Lady agree that, until we can take the step of employing responsible officers, that does need to be resolved?
The hon. Lady has hit the nail on the head, which is why I am posing some questions here and now. I am not sure how this will all be resolved in practice. Bearing in mind that where doctors go other professions are likely to follow—with different employment models—my overriding concern is the potential blurring between employment and regulation functions. I was quite surprised when I heard Lady Justice Smith say that responsible officers would have an interest in keeping their staff because my immediate concern was the exact opposite, in that if a member of staff was proving problematic, there could be a search-and-destroy attitude.
Let us look at the example of a whistleblower who highlights to their local Member of Parliament certain hospital practices with which they are not happy. The hospital would obviously not be happy with the fact that those practices were being highlighted and the medical director might be put under pressure to find some problem with the whistleblower that could be used to bring pressure to bear, such as a threat to their employment record. It is essential that there is a dividing line between those functions. It is easy to see how the role of the responsible officer could be abused. I would like to think that all responsible officers would resist such temptations, but I suggest that there is a finite chance that the pressure put on the responsible officer would mean that the laudable aim of local resolution would not be achieved whereas games playing could be achieved. Potential manipulation of health professionals in that way is a dangerous road to take.
It is worth reminding ourselves that the setting up of responsible officers to improve clinical governance at local level was another of Dame Janet’s main recommendations. Far from the examples given by the hon. Lady, of which we do need to be cognisant—I will come on to some of the safeguards in a moment—most of us will have come across examples in our constituencies, in either the primary care or acute sector, where certain practices have been allowed to continue for far too long and issues have not been addressed. We have come upon some such examples ourselves. That is exactly what the role of the responsible officer is intended to try to address.
I was grateful to the hon. Member for Eddisbury for reminding me of my words in the evidence-taking session. I do not intend to repeat them, but I do wish to reassure the hon. Gentleman that it is our intention that responsible officers will be medically qualified and a registered medical practitioner. We shall lay that down in regulation. Indeed, many of these issues will be resolved in regulation. I would also like to point out to him that the amendments would not achieve the objective that he seeks. Although they would restrict the role of a responsible officer to those who were clinically trained, it would still be possible for responsible officers’ duties to be undertaken by members of other professions or professionals who have allowed their registration to lapse, or indeed, people who have never been registered with the national regulator. Even if the hon. Gentleman wanted to press the amendments, they would not achieve the ends that he seeks.
On the potential conflict of interest if responsible officers are medical directors, we have made it clear that while we do not seek to be prescriptive, we think that a medical director would be perfectly appropriately for this role. Many of the best medical directors are already carrying out most of the duties that responsible officers would be expected to carry out, in that they already have an important role in clinical governance. It is important that all healthcare organisations have effective clinical governance to protect patients, and the role of responsible officer will strengthen that by putting some of these functions on a statutory footing. The responsible officer will be responsible for identifying and managing cases in their organisation where there are concerns about a doctor’s performance. The management of those cases would include investigating the circumstances, instigating remediation and, where appropriate, referring cases to the GMC for further action. To respond to questions asked by hon. Members earlier, responsible officers will not take the action or refuse the revalidation themselves. We believe that the role is entirely consistent with any good health organisation’s role in protecting patients.
The hon. Member for Eddisbury made a plea for the system to be bottom-up rather than top-down, and I entirely agree with him. I refer him to comments made by Sir Graham Catto, who I quote in preference to Hamish Meldrum of the BMA. He said:
“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.”
He went on to say:
“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.”
Findlay Scott, his colleague from the GMC, went on a little later to say:
“We see the appointment of responsible officers as a further strengthening of local governance and as a reinforcement of local responsibilities.”
He went on:
“There is substantial evidence from our procedures that early and effective action could have saved doctors’ careers,”— that goes back to what I was saying earlier about nipping a problem in the bud, so that it does not come to the situation where a more drastic reaction is needed—
“if problems had been identified sufficiently early and not allowed to drift. Clinical governance has already made a substantial contribution to that.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 52-53, Q105-07.]
In terms of how the responsible officers would fit in with the GMC and its affiliates at national level, they would have statutory responsibilities to ensure that doctors in their organisation are fit to practise and that the right processes are in place to protect patients. The GMC would still be the national regulator for all doctors in the UK. As I have said, responsible officers would not decide whether a doctor was re-licensed. They would make recommendations to the GMC, but the GMC would continue to be the regulator in that regard and responsible officers would be required to liaise with the GMC on individual fitness to practise cases, where responsible officers judged that national sanctions may be required.
As for the safeguards, responsible officers will be subject to exactly the same disciplinary procedures as other doctors. Complaints will be made either through the NHS complaints procedure or to the GMC. We will provide detailed guidance for responsible officers to ensure that they document their concerns only when appropriate.
My current thinking is that it would not require a full-time post. However, an existing medical director, part of whose job is to carry out such functions, might need to employ some support. The role would need to be devised locally. I shall say in a moment why we believe that there will be a need for extra resources and extra support. It will be a requirement under the Bill. Indeed, we are providing for that support through the comprehensive spending review to be announced in the autumn.
We accept that there will be an additional work load, but we expect that those burdens will be containable, the costs being offset by the benefits of improved quality and patient safety, and by obviating the need to escalate the sorts of cases to which I referred earlier and to which the GMC drew attention. Under the Bill, we require organisations to provide the necessary resources for responsible officers to carry out their role and to ensure that organisations that provide responsible officer functions to others are not disadvantaged. The Bill makes provision for responsible officer costs to be provided by those receiving the service.
Training will be developed, through the expert advisory group that we are developing, on deciding the necessary competences for responsible officers. Once we have agreed those competences, we will negotiate with the pension providers to develop and deliver specific training on the role of responsible officers. The sub-group doing that work will include medical directors and GMC, BMA and NHS management, including HR specialists.
I hope that I have reassured hon. Members on the role of responsible officers and how they fit into the general system, and on the support that will be available to them and to local trusts in order for them to do their jobs properly. It is so long ago now that I have forgotten whether we are debating one or more amendments, but however many there may be, I hope that the hon. Member for Eddisbury will not press them.
I listened carefully to the Minister. To put it in context, the Minister rightly pointed out that this provision comes on the back of a recommendation from the then Dame Janet Smith, now Lady Justice Smith. In her evidence she said that she could not see from the Bill how it would work, and given the way that the Bill is drafted, one can understand that. The Minister sought in his response to give us some finer grained detail.
We heard about pressure, and not only from my hon. Friend the Member for Tiverton and Honiton, meaning that in certain settings it might be too much of a problem to get rid of somebody. We then heard from the hon. Member for Romsey, who if I interpreted her remarks correctly sought to show why there might be too great a risk of victimisation. A spectrum of risk is obviously being contemplated, and although I welcome what the Minister had to say about training, we are still left with those conflicts and potential misunderstandings.
The Minister said that he expects to see a lot of these matters dealt with in regulation. Given the genuine concern expressed in our debate, I rather hope that the Committee will have the opportunity to see those regulations, at least in draft form, on Report. If that is not feasible, I hope that they will be ready for those who will be considering the Bill in another place. I am sure that that will be an important way of setting the matter in context.
On the same basis as I have done previously, to ensure that the point does not get lost, I would like to press the amendment. It is for no other reason as, looking at the numbers in the Committee, I recognise that I may be adopting a forlorn position. None the less, by pressing the matter, I hope to keep the Minister’s feet to the fire on that point. I hope, too, that we may see the regulations, at least in draft, brought forward when we are considering the relevant measures in the Bill. It is such an important area to get right, not least because we are putting such responsibility on the responsible officer. We must ensure that they are in the best position to carry out the functions successfully. On that basis, I seek the opportunity to divide.
‘(5A) In conferring powers under subsection (5), the designated body must have regard to—
(a) patient safety,
(b) the continuing professional development of medical healthcare professionals, and
(c) the continuing professional development of healthcare managers.’.
I was forlorn, indeed bereft, at the results. [Interruption.] I take the sympathetic moans from the Opposite Benches with the sincerity with which they were offered.
The amendment seeks to include in the responsible officer’s role responsibilities for patient safety and the continuing professional development of doctors and health care managers, insofar as they impact on doctors’ performance. I hope that the Minister will find that of interest, given the training commitment that he has so assiduously sought to lay out.
Responsible officers provide the opportunity for a dedicated individual to pick up the early warning signs in, for example, prescribing practice, and to alert for an improvement in performance. In an open system of benchmarking, something on which I am particularly keen, that could be an effective asset to the local and national health economy, and to the professionalism and morale of local doctors.
On the other hand, as we have discussed, the responsible officer could be little more than a revalidating rubber-stamper and a “copper’s nark”. That would have the reverse effect on the profession and, ultimately, would fail significantly to benefit patients and the public. I hope that the Minister will see the point that, by outlining what he expects the day-to-day role of the responsible officer to be, he is thereby able to include experience of and responsibility for continuing professional development in the competency framework currently being discussed by his Department, of which I am aware. The amendment would be useful to help to underpin many of the points that I acknowledge that he has set forward.
As we discussed earlier in the Committee, patient safety and the quality of care are the core business of every health care organisation, and the new regime set out in part 1, particularly the obligation to register with a national regulator, is intended to enforce that fundamental responsibility. Health care organisations will need to comply with statutory safety and quality requirements, which will include ensuring that all staff, both clinical and managerial, are appropriately skilled and trained to carry out their duties. Patient safety and the professional development of doctors lie at the heart of the responsible officer’s role, both in relation to the duties under this clause and those proposed under clause 111.
The amendment would require a designated body to have regard to patient safety and
“the continuing professional development of medical healthcare professionals, and...healthcare managers.” when giving a responsible officer additional duties. That would be in addition to having regard to the responsible officer’s statutory responsibilities.
If the hon. Members intended that responsible officers should consider the impact on patient safety and on continuing professional development when carrying out their primary duties, the amendment would not achieve that. It places a responsibility on the organisation to take those factors into account only when they decide to assign additional duties.
We do not want other duties that might be given to a responsible officer to interfere with the proper functioning of statutory responsibilities. Beyond that, I do not see any advantage to patients or to health care staff in unduly constraining the freedom of health care organisations to combine the responsible officer functions with other appropriate duties—for example, clinical duties or a broader clinical leadership role. The clause would preserve that freedom and I therefore hope that the hon. Gentleman will agree to withdraw the amendment.
Briefly, I rise to probe the extent of the Secretary of State’s power with regard to the clause. I note from the memorandum on delegated legislation that under the clause, powers are conferred on the Secretary of State in relation to England, Scotland and Wales. The powers are
“to make regulations to designate bodies which shall be required to nominate or appoint persons, to be known as responsible officers, with responsibilities in relation to” professional regulation—that is on page 51 of the memorandum. Can the Minister explain why the powers are not devolved? Will responsibilities imposed upon primary care trusts in Scotland, and local health boards in Wales through this legislation be recognised in funding through the Barnett formula?