Response of the BMA to the Department of Health for England’s consultation document, 'Healthcare and associated professions (miscellaneous amendments) order 2008”
February 2008
Thank you for seeking the views of the British Medical Association on the Department of Health's consultation document on Healthcare and Associated professions (Miscellaneous Amendments) Order 2008. The BMA is an independent trade union and voluntary professional association which represents doctors from all branches of medicine throughout the UK. It has a total membership of over 139,000.
Question 1: Do you support having, as a main objective for all the regulators, a provision giving greater emphasis to the importance of public protection?
Yes, but not to the exclusion of their proper duty to registrants. Protection of the public is important and there should be a strong emphasis on this, but where someone’s livelihood is at stake, we must be as sure as possible that they are guilty of something which is serious enough to jeopardise this.
It is proposed in paragraph 3.5 that each regulator should have as its main objective a version of the text set out in this paragraph. The suggested paragraph is rather long and, for the GMC, we would prefer to keep the simple purpose of “To protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine.”
We believe that the incorporation of the words “well-being of the public” into the objectives of regulators is not appropriate; it is drawn too wide and might be interpreted as almost anything.
It is stated in bullet point 1 of paragraph 1.1 that regulatory bodies must change so that they “are generally smaller, with much greater patient and public representation in their membership”. This could imply that they would have less knowledge of the specifics of the discipline which they regulate. As we state below in our response to question 4, we believe it is vital for professional confidence that the GMC has a medical majority and that its medical members continue to be elected by the medical profession.
Question 2: Do you agree that these standard duties will improve the co-operation and the co-ordination between professional regulators and key stakeholders?
No, this area is very complicated and needs much more information, particularly around 3.12. Until this is further defined, no firm conclusion can be reached on this issue and it will need to be revisited.
We suggest that one of the groups with which the regulators should work are the representative bodies of the professionals as, generally, the whole order moves the regulators away from working with professionals and focuses the importance on working with the employers and the public.
Question 3: Do you agree that Parliament should play an enhanced role in relation to the accountability of regulatory bodies, facilitated by improved arrangements for notification by the bodies of information relating to their past and future activities?
Yes, we believe that Parliament should play an enhanced role in relation to the accountability of regulatory bodies. As stated in paragraph 3.14, it is important that “the professional regulators must be independent in their actions and equally importantly be seen to be independent”.
The regulators should be required to report to Parliament on the effectiveness and accuracy of their fitness to practise procedures. It is essential that FTP procedures can be demonstrated to have reached an appropriate conclusion. FTP procedures may well be effective, i.e. they may be capable of erasing people from the register, but they must also be able to demonstrate that only the guilty are erased. Efficacy must not be judged by the number of doctors that are erased.
Question 4: Do you agree with the new, more flexible arrangements for establishing constitutions for the regulatory bodies?
The BMA has long argued in favour of a medical majority on the GMC’s Council to retain professionally-led regulation and the profession’s confidence in the regulator. The White Paper “Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st Century” (February 2007) proposed that the GMC should have, as a minimum, parity of membership between lay and medical members. The BMA does not support the government’s view that the existence of a medical majority undermines the GMC’s independence. Currently, an Order in Council cannot impose a lay majority on the Council of a regulatory body. We were very concerned to see that paragraph 4(3) of Schedule 8 (page 163) of the Health and Social Care Bill appeared to change this and appeared to pave the way for the imposition of a lay majority on the GMC. These concerns have partly been assuaged by Clause 1B(2) of the Health Care and Associated Professions (Miscellaneous Amendments) Order 2008 which states that an order of the Privy Council with regard to the constitution of the GMC's Council "must not include any provision which would have the effect that a majority of the members of the General Council were lay members."
Our view remains that a medical majority on the GMC, which need not be large, is vital in maintaining the profession’s confidence in its regulator and will be even more important if the recommendation made by Sir John Tooke that the Postgraduate Medical Education and Training Board be subsumed within the GMC “Aspiring to Excellence, Final Report of the Independent Inquiry into Modernising Medical Careers” Led by Professor Sir John Tooke (January 2008) is carried through. We also believe that the medical profession should continue to elect medical members to the GMC as this is a means of ensuring the credibility of the regulator with the profession that it regulates. With regard to the question of direct election of medical members, at the very least, the BMA recommends that the medical members should be elected from a long list produced by the Appointments Commission.
The draft order states in section 1B(1)(c) (page 56) that the Privy Council may make an order for the appointment of the Chair and Treasurer of the GMC. We believe that this proposal represents a weakening of the ability of the GMC to govern itself and strongly believe that the GMC itself should chose its office holders. This section of the order is also contrary to the proposal in the White Paper “Trust, Assurance and Safety”, which indicated that councils should elect their own chairs (paragraph 1.23 of the white paper). The role of the Privy Council generally vis-à-vis the GMC causes us concern as it appears from paragraph 3.25 (“the Privy Council [will] provide by Order [for] the numbers of lay and registrant members on each council, their terms of office, arrangements for appointing a chair, and provisions with respect to the suspension or removal of members.”) that the Privy Council will determine much of the way in which the GMC operates. Doctors will begin to wonder why they will be expected to pay for something to which they cannot elect, which will not have a medical majority and which cannot elect its own officers.
Question 5: Do you agree with adding appearance on a barred list to the grounds for which a health professional’s fitness to practise may be considered to be impaired?
We agree with this statement in principle as inclusion on a barred list ought instantly to trigger referral to the fitness to practise procedures. There should be proper consideration of the practitioner’s fitness to practise rather than the imposition of instant sanctions on his/her registration. The process by which a person is added to the barred list must be fair and a person should only appear on a barred list via the decision of a court or independent board and not by any individual Secretary of State.
Question 6: Do you agree with the strategy for standardising the order and rule making powers of the regulators, and with the move towards giving them greater flexibility over internal process issues while increasing Parliamentary scrutiny of outcomes?
We would prefer that the current arrangements continue and that the 'process' issues of the regulatory bodies continue to be subject to the same level of Parliamentary scrutiny as they are at present. We would also welcome more detail on how the proposed new measures would work in practice.
Question 7: Do you agree that all regulators of health care professionals should be under a legal duty to maintain registers of the private interest of their council members?
We agree with this statement and also believe that Council members should be required to disclose any political affiliations since active members of political parties may be subject to external pressures.
Question 8: Do you agree that the regulators should have the option of engaging other bodies to assist them with their appointments functions?
This may be helpful and, as long as the regulators are not obliged to engage other bodies, we would not object to this proposal.
Question 9: Do you agree that the General Medical Council should be given reserve powers to register suitably experienced people to help out as doctors during an emergency?
This appears, in principle, to be a sensible provision, although we have the following comments:
there will have to be safeguards to ensure that the powers are properly exercised. For example it must be clarified that “suitably experienced people” refers to doctors and not, for example, vets;
the provision implies that a group of people (rather than individuals) may be deemed suitable for registration in an emergency, which does cause us some concern.
If this question actually refers to GMC reinstating prescribing rights for retired doctors in national emergencies, then this should be clearly stated in the consultation rather than the generalised question that has been produced. It needs to be extremely explicit that these people in times of emergency need to have some minimal level of verifiable qualification to act in the capacity that they are being asked to, although this may have lapsed for normal times.
Question 10: Do you agree that the list of bodies that can provide primary United Kingdom medical qualifications should be an administrative list kept by the GMC, and for which they are responsible, rather than being set out in statute?
UK medical qualifications should be set down in statute not by the GMC. We believe that the proposals may weaken the current arrangements as it is necessary to restrict private medical schools accessing UK primary qualifications and keep the requirement for F1 training. In section (iii) of paragraph 4.9 it is stated that this is “to allow bodies other than universities or combinations of universities to be included in the list” [of bodies entitled to hold qualifying examinations for granting primary UK qualifications]. What body, that is not a university, might be appropriate to award medical degrees? This does not seem appropriate, especially given the large amount of medical graduates currently competing for fewer jobs.
Question 11: Do you agree that UK trained osteopaths who have been working overseas should have their earlier qualifications recognised when they return to the UK, provided they apply within the stated time limits?
Yes
Question 12: Do you agree that these UK trained chiropractors who have been working overseas should have their earlier qualifications recognised when they return to the UK, provided they apply within the stated time limits?
Yes
Question 13: Do you agree that the NMC should be given reserve powers to annotate their register so that suitably experienced person without the relevant qualifications will nevertheless be able to act as prescribers of prescription only medicines during an emergency?
We disagree with this statement. If a patient needs a prescription only medicine then he/she needs to see a doctor, rather than someone who is not fully trained. The key to managing emergencies is not to ‘promote’ people into posts that they are not trained for, but rather make the system more efficient. On the grounds of patient safety this statement goes far too far.
Question 14: Do you agree allowing the NMC to determine who should sit on its practise committees?
Yes