Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006

My Lords, before I begin I should declare several interests. I am a former member of the General Medical Council, of its fitness to practise committee at various stages, and of its education committee. I am also an honorary fellow of the Royal College of Physicians and the Royal College of General Practitioners, so I could be said to have an interest in some of this. Broadly, this order seems eminently sensible to us, and the Government are to be praised on having consulted so widely. Their report on their consultation is excellent. However, not all the questions have been answered, and I share some of the concerns expressed by the noble Earl, Lord Howe. We have all had representations from the MDU and the MPS, for which we are grateful. They raise some serious issues, and the noble Earl, Lord Howe, has addressed them to some extent. New Section 44C gives the GMC powers to require doctors to have mandatory indemnity and also to determine what constitutes ““adequate and appropriate indemnity””—that is absolutely right. It must be right that doctors should have compulsory insurance or mandatory indemnity. But the Medical Defence Union argues that this order may allow discretionary indemnity to be used to indemnify doctors and that such doctors would then have no right to receive assistance with a claim but only the right to request assistance. Given the scale of some payments in the current climate, might not discretionary indemnity be simply inadequate to meet doctors’ and patients’ needs—assuming that the MDU is right? I do not know the answers to any of these matters; I am genuinely asking the Minister for clarification. The Medical Defence Union has argued that discretionary indemnity is not regulated, and nor are the providers of wholly discretionary indemnity, in the manner in which insurers and providers of insurance are regulated by the FSA. It also argues that there is no contract, that no companies providing discretionary indemnity may give a doctor a guarantee that they will assist with clinical negligence claims, and that to do so would be to carry on an unregulated insurance business, which is a criminal offence. The MDU gives a variety of other reasons why it is concerned; but one can see why that may be the case, because both kinds of indemnity and insurance have existed in parallel over many years. It seems significant that three UK healthcare regulators—the general optical, osteopathic and chiropractic councils—already require healthcare professionals registered with them to have an insurance policy because they received legal advice that discretionary indemnity does not meet the definition of ““properly insured””. Will the Minister clarify whether the Government are concerned about that and whether they think the MDU’s representations are right or wrong? They may be right, but I simply do not have the expertise to tell. It would also be good to hear whether the Government will insist that an indemnifier give an explicit and enforceable undertaking to pay for negligence claims that arise from normal clinical practice. The MPS says that it has never withheld such payment, but what would happen if others joined the market? Indeed, one might argue, as the MDU does, that the indemnifier and the terms and conditions of indemnity should meet minimum terms and conditions. That seems nearer the Medical Protection Society’s position, but it would be good if the Minister could clarify that. The question of indemnity cover for retired doctors was raised in another place. Again, it would be very good to hear what the Minister has to say about this and how satisfactory the situation will be. The second point is the change from limited registration, which the noble Earl, Lord Howe, raised. Those who would formerly have had limited registration, such as those who graduated overseas, will now have full registration. How will that work in practice? Who will undertake the approval in approved working environments—another point raised by the noble Earl, Lord Howe—and how will the approved working environments be monitored in the longer term? What will the standard be and, as the Member for Westbury asked in another place, what will be the impact on existing trainees who are supervised? It would be very good to hear how the Minister perceives that monitoring will be approached. Generally, however, we are very pleased that this measure gets rid of some of the unfairness to doctors who have not trained in the UK and who wish to continue training here. But how does that fit with new decisions to change the immigration status of doctors from overseas, who have in the past served us so well in the National Health Service? We have discussed this before, including recently in Questions, and we will no doubt do so again, but it would be good to hear what the Minister has to say about what might be argued to be two apparently mutually contradictory policy directions. The Member for Romsey in another place raised the issue of mutual recognition for EU graduates set out in EU law. That does not include the English language proficiency tests, yet Section 21B(1)(d) states that a person can be registered if he satisfies the registrar, "““unless he is an exempt person, that he has the necessary knowledge of English””." Sandra Gidley asked the Minister in another place to clarify whether the phrase ““exempt person”” meant doctors from the EU. The Minister answered, rightly, that EU law requires us to register them as doctors, but he added that there is nothing to stop employers imposing a language requirement on a person seeking to work in a specific place. It would be good to hear from the Minister how realistic and important he thinks that is, as this has been an issue in the National Health Service. Those issues aside, we are broadly content with the order and are particularly impressed with the consultation that the Government undertook.