Official Report (Hansard)

COMMITTEE FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY

OFFICIAL REPORT

(Hansard)

Health (Miscellaneous Provisions) Bill

Thursday 21 June 2007

Members present for all or part of the proceedings:

Mrs Iris Robinson (Chairperson)

Mr Thomas Buchanan

Rev Dr Robert Coulter

Dr Kieran Deeny

Mr Alex Easton

Mr Tommy Gallagher

Mrs Carmel Hanna

Mr John McCallister

Ms Carál Ní Chuilín

Witnesses:

Mr Brian Best }

Dr Brian Dunn }British Medical Association Northern Ireland

Dr Brian Patterson }

Mr Ivor Whitten }

Ms Claudette Christie }British Dental Association Northern Ireland

Mr Seamus Killough }

Mr Bryan Bailie }

Mr John Farrell }Department of Health, Social Services and Public Safety

Mr Robert Kirkwood }

Mr Donncha O’Carolan }Acting Chief Dental Officer

The Chairperson (Mrs I Robinson):

Should Committee members have any queries about the Health (Miscellaneous Provisions) Bill, departmental officials are standing by. I welcome Mr John Farrell and Mr Bryan Bailie, who are assistant directors of the primary and community care directorate, Mr Donncha O’Carolan, who is the acting Chief Dental Officer, and Mr Robert Kirkwood of the departmental Bill team.

I welcome our witnesses: Dr Brian Patterson, who is chairman of the Northern Ireland council of the British Medical Association (BMA); Mr Brian Dunn, who is chairman of the Northern Ireland general practitioners’ committee of the British Medical Association; Mr Brian Best, who is secretary to the British Medical Association Northern Ireland; and Mr Ivor Whitten, who is Assembly and research officer with the British Medical Association Northern Ireland. There are a lot of Brians with us today — it must have been a popular name, although I will not ask in which year. [Laughter.]

I would appreciate it, Dr Patterson, if you would deal specifically with the Health (Miscellaneous Provisions) Bill and indicate which clauses, if any, the British Medical Association Northern Ireland would like to see amended. We will allow 10 minutes for a presentation and then members will have about 20 minutes to ask questions. I am sorry that time is limited, but several presentations on the Bill are yet to be made to the Committee.

Dr Brian Patterson (British Medical Association Northern Ireland):

Thank you, Chairperson. I must waste a minute of our time, because this is the first opportunity that BMA Northern Ireland has had to offer the Committee some information on its role. We are grateful for the chance to talk to the Committee, and we hope that this meeting will be the first of many.

Many people know that the BMA is a trade union for doctors, but it is also a professional organisation with many other interests. The BMA represents the majority of doctors in Northern Ireland — both qualified doctors and medical students — and it acts as the voice of the medical profession by highlighting issues to politicians, the public and the media on a wide range of matters, such as public health, medical ethics and the state of the National Health Service.

The BMA has more than 4,000 members in the Province. It has crafts, or branches of practice, that represent consultants, general practitioners, staff and associate specialists, junior doctors, public-health doctors, medical academics and medical students. The BMA carries out a vast array of work on behalf of those professionals.

The BMA is the only registered trade union that can negotiate on behalf of doctors. However, it also produces a wide range of policies on public health, ethics and the state of the Health Service, and it publishes widely through the ‘British Medical Journal’. BMA policy on the Health Service dictates much of what we will refer to in our presentation.

The BMA’s view is that the Health Service must be free at the point of delivery; be centrally planned and adequately funded; provide equality of access, regardless of locality or income; be based exclusively on clinical priority; provide an equal standard of care for patients; ensure equality of health outcomes; and not discriminate on grounds of race, age, disability or religion.

The BMA is a voluntary professional organisation that operates at home and abroad. Apart from its trade union function, it has a scientific and educational ethos; it is a publisher and a limited company. The vast majority of the BMA’s work is self-funded. However, the BMA does not register or discipline doctors — people are frequently confused about that.

Thank you, Chairperson, for allowing me to deliver that preamble. I shall ask Dr Dunn to outline the provisions in the Health (Miscellaneous Provisions) Bill with which we agree and disagree.

Dr Brian Dunn (British Medical Association Northern Ireland):

I am chairman of the Northern Ireland general practitioners’ committee of the BMA. Although that is a subcommittee of the organisation, it represents all GPs in negotiations with the Department of Health, Social Services and Public Safety, whether they are BMA members or not. I am here principally as a doctor. Although we represent doctors, our primary interest is in patient safety and in delivering a good service to patients.

There are some positive elements in the Bill, and some with which we are not as happy. First, on the positive side, paragraph 1(2) of schedule 1, which concerns the inclusion of practitioners on a single performer list in each health and social services board, makes practical sense. That will ease the eventual amalgamation of all the boards into the new health and social care authority. Schedule 1 amends schedule 11 to the Health and Personal Social Services ( Northern Ireland) Order 1972.

Secondly, paragraph 3(3) of schedule 1 removes the sanction of local disqualification from the powers of the Health Service tribunal. The BMA agrees that, if a practitioner is deemed unfit to be included on one board’s list, it would be inappropriate to include him or her on any other board’s list.

Thirdly, clause 13 repeals article 4 of The Health and Medicines ( Northern Ireland) Order 1988, which empowered the Department to specify the age at which GPs must retire. The current retirement age is 70, and, in order to comply with the European directive on age discrimination, it is right that that power should be repealed. However, we are happy that appraisal and revalidation processes will ensure that doctors, no matter their age, will be permitted to practise.

There are provisions in the Bill with which we are unhappy. Paragraph 8(4) of schedule 1 extends the powers of a health and social services board to suspend a practitioner before referral to the tribunal. Suspension is a rare occurrence, and many safeguards are in place to ensure that patient safety is maintained. In employment law, suspension, pending the investigation of an allegation, is normally viewed as a neutral act. That would be in the case of a serious allegation. In the interest of all parties, the person under investigation would be temporarily suspended or excluded from his or her employment — with pay and benefits — but would not be deemed guilty or innocent until a judgement had been made.

The problem with boards having the new power is that they would not be required to put an allegation before the tribunal in order to impose a suspension. However, they could do so before a tribunal had seen the evidence on which the allegation had been made. A guidance framework on how that should be done must be negotiated. The BMA is concerned about patients’ safety, and it recognises the need to give them confidence that the service that they receive is of the utmost standard and is delivered by GPs who work to a consistently high level.

The BMA is also concerned about the possible effect that suspension would have on a GP before the tribunal could fully investigate the case. The BMA contends that the statement that suspension is a neutral act is incorrect. In the recent case of Mezey vs South West London and St George’s Mental Health NHS Trust, the judgement of Lord Justice Sedley was that, in relation to the employment of a qualified professional in a function which was as much a vocation as a job:

“Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence. Of course this does not mean that it cannot be done, but it is not a neutral act.”

The BMA is mindful of a board’s power to impose specific restrictions on a practitioner if he or she is to be retained on a performer list. The alternative of placing conditions on practitioners might be a way in which to avoid total breakdown of practitioner/patient trust. That may also help in rural areas, where many GPs work single-handedly. However, a guidance framework for that process must be negotiated. That is important in small towns. If a GP were suspended, it would not take long for everyone to find out what has happened. Many local people might know before the doctor’s husband or wife.

The BMA is also unhappy about clause 1, which deals with the extension of powers to allow boards to make payments to suspended practitioners. That clause will amend article 57G of the Health and Personal Social Services ( Northern Ireland) Order 1972, which deals with persons performing primary medical services. The extension of the ability to pay suspended practitioners is welcomed as a matter of course. However, clarification is required on the framework for that process and the extent to which it would cover the cost of the suspended practitioner. The impact of the redistribution of service provision on other partners in a GP practice to cover for the suspended GP and the cost of a locum to replace the suspended GP for the duration of the suspension require close examination so that a suspension does not penalise the practice or adversely affect the provision of primary healthcare services to patients. As a minimum, boards must be responsible for the full costs.

Paragraph 1(5) of schedule 1 introduces an additional ground on which the Health Service tribunal may deal with a practitioner who has been referred to it; namely

“the person concerned is unsuitable (by virtue of professional or personal conduct)”.

The definition of that third ground for disqualification — the other conditions being fraud and prejudice to the efficiency of services — lacks clarity.

The BMA wants to examine closely that third ground for disqualification in order to establish how it would impinge on investigations by professional regulatory bodies, such as the General Medical Council, into fitness to practise, as set out in the Medical Act 1983. Such bodies have clear definitions and sanctions for such conduct. More detail on how the new power would differ significantly from the provisions relating to fitness to practice is required.

Dr Patterson:

I want to mention two matters in the Bill that are not specific to GPs. First, clause 15 proposes an amendment to The Smoking ( Northern Ireland) Order 2006, which would permit

“those participating as performers in a performance”

to smoke

“if the artistic integrity of the performance makes it appropriate for them to smoke”.

Members will be aware that the BMA, along with many others, campaigned successfully to have smoking banned in public and enclosed workplaces. We consider the proposed change to be cosmetic, and we have heard the same news as the Committee that the clause will be removed. However, we are concerned that the proposal, and others that may follow, are attempts to dilute the power of the 2006 Order. Passive smoking has been shown to kill. No matter where it takes place, it is somebody’s workplace. Someone must clean up after folk. The BMA welcomes the Minister’s commitment to remove clause 15 from the Bill.

The Bill and its explanatory and financial memorandum do not appear to recognise the role of professional regulatory bodies such as the GMC and the medical defence organisations (MDOs). We ask that the Committee consider that point. Moreover, any changes that the Bill might make to the tribunal must be consistent and compatible with existing regulatory procedures.

The Chairperson:

Thank you. It was interesting to hear the GPs’ committee’s perspective. I will open the floor to members’ questions.

Mr Easton:

What measures, instead of or alongside suspension, would you like to see imposed on a practitioner who does something wrong, be it serious or otherwise?

Dr Patterson:

The severity of the measure should depend on what has happened. For instance, if a doctor’s competency in dealing with children’s problems has been questioned, there is no reason that that doctor should not deal with adults. Indeed, the community would be better served if that doctor were only restricted from dealing with children.

Dr Dunn:

I agree. We do not want patient safety to be compromised, but the fact that the board can suspend a practitioner before his or her case goes before the tribunal is akin to taking a sledgehammer to crack a walnut. Even appearing before the tribunal is an infrequent occurrence; it has met only twice in the past few years. Boards can use many informal methods to address cases about which they have concerns, and their close work with practices suggests that they use those methods all the time. The BMA, the local medical committees and we GPs work with the boards, and if problems arise, we visit the relevant practices. There are, therefore, more informal and effective ways than suspension in which to deal with problems.

Mr Easton:

Am I correct in saying that you do not wish to see suspension ruled out but that other measures should be considered alongside it?

Dr Dunn:

Absolutely. If patient safety were compromised, we would not object to the suspension of the practitioner involved.

Mr Easton:

Does that mean that you want to see other measures alongside suspension?

Dr Dunn:

Yes.

The Chairperson:

You suggest in your briefing paper that conditions, rather than automatic suspension, could be placed on practitioners who are under investigation. How would that work, and what sort of conditions do you propose?

Dr Patterson:

There have been several examples of doctors who have been addicted to drugs, for instance, and they have been allowed to continue practise but with restrictions being placed on their supervisory role in the use of controlled drugs. The measures that are imposed on a practitioner will depend on his or her problem, but there are ways in which to deal with several situations. Requests for a practitioner’s suspension are usually based on his or her underperformance or on illness. Total suspension may be the only answer in some cases, but I am concerned that, if boards were given the power to impose suspensions, it would be their first rather than their last course of action. That would serve neither the people whom we represent nor the patients.

The Committee has heard the argument about a “neutral act”. I work as a GP in a rural area, and if I were suspended, the local people would probably know about it before I did: that would not be a neutral act in the community. There are many rural communities in Northern Ireland.

The tribunal has met only twice since 1978, so that shows the extent of the issue. I contend that it is more important to ensure that the tribunal’s activities are timely and sensitive than to set up more bureaucratic machinery, which may be inappropriately used.

Ms Ní Chuilín:

As I said during the debate on the Bill’s Second Stage on Tuesday, I am concerned that the legislation may be open to misinterpretation. I would struggle to come up with a case in which suspension could be deemed a neutral act, regardless of the profession involved. I am not saying that suspensions are never required, and I understand that patient care is paramount. However, unless clear guidelines and boundaries about what can and cannot be done are produced, I would have concerns.

I am not saying that the trusts could be abusive — I do not wish to suggest that. However, the guidelines must be robust and clear, and leave no room for confusion. I have not even read the legislation in great detail, yet already I am confused. As I have said, the legislation is open to misinterpretation. As a new MLA, I have not read much legislation. However, I have read for most of my adult life, and I still have to jump backwards and forwards through the Bill to understand what it means. The Assembly is responsible for introducing legislation, so the Bill should be much clearer. I would appreciate it if the witnesses could provide me with more information, but I want to put on record my concern that the provision could be open to misinterpretation.

Dr Patterson:

We entirely agree; that is one of the reasons why we are here. People will point to serious cases from the past, with the classic one being the Harold Shipman case. He is a blight on general practice to this day, and he is long gone. The problem was not the absence of processes, but the failure to make the existing processes work, either by not implementing them in time or by not implementing them at all.

We are content that safe processes are already available. We may need to consider how they can be operated and used more effectively. The Health Service tribunal has sat only twice since 1978, but that is probably not a fair reflection on the need for tribunals since then. We perhaps need to look at how the existing processes work rather than adding another tier of bureaucracy, which could be accidentally misused.

The Chairperson:

Is the BMA concerned that that provision could open the floodgates for people to make allegations against their GPs or other medical staff who deliver front-line primary care?

Dr Patterson:

That depends. There have been questions about so-called soft evidence, which concerns us. The well-known principle of innocent until proven guilty is accepted by most democracies. The provision smacks a little of treating people as guilty before innocence can be proven, and that concerns us.

Rev Dr Robert Coulter:

My position on the matter is clear, and it on record in Hansard. I am concerned about non-medical people being given the opportunity to suspend medical practitioners. In light of that, if this provision is removed from the Bill, how do you see the partnership working among the existing disciplinary organisations that medical people control and the boards and civil servants?

Dr Patterson:

I will answer first, and Dr Dunn may wish to comment as well.

On the composition of the tribunal, no one could now sustain an argument that only medical people can have a say in such matters. However, the composition must represent a balance of people from medical and non-medical backgrounds. The tribunal has that balance.

As for the regulatory bodies, the GMC is undergoing a revolution in that it is no longer a doctors’ organisation that regulates doctors, and there are radical proposals ahead for that body. There is talk of no one scrutinising the profession, but other regulatory bodies exist. The National Clinical Assessment Service (NCAS) is a broad church, as is the Regulation and Quality Improvement Authority (RQIA), which is the regional quality inspection body in Northern Ireland.

Numerous checks and balances are available, and they seem to work. However, it will be for the Assembly to decide whether additional measures are necessary. We must examine the existing available measures and make them work to the best of their capacity. The danger in having many organisations and measures in place is that they might leave it to one another to address matters.

Rev Dr Robert Coulter:

Could you provide the Committee with a steer on how you see the tribunal working?

Dr Dunn:

We do not have a problem with the Health Service tribunal. If a practitioner is suspended by the tribunal, pending investigation, we do not have a problem with that. We worry about practitioners being investigated on flimsy evidence before suspension happens.

As Dr Patterson said, a raft of people are regulating what happens in general practice. Complaints procedures are in place, so if patients are not happy, they can make a complaint, which would be investigated by the complaints panel of the area board.

Our worry is that the legislation is being introduced only because it has been introduced across the water — it is really English legislation. The Bill adds nothing to the regulation of the medical profession here; instead, it may make regulation more difficult by instituting suspension rather than remedial procedures.

The majority of suspensions on grounds of medical practice are usually due to illness. General practice, believe it or not, is a stressful job with a high incidence of stress, alcohol abuse, etc. Most GPs underperform for those reasons, and they do not require discipline, but help. Some GPs may not be in a position to benefit from full remedial processes, but there are enough hurdles for GPs to jump over as things stand. The Bill is simply replicating what has happened in England. There are enough processes in place in Northern Ireland to protect the general public.

Mrs Hanna:

Should health and social services boards not have the power to suspend GPs? I thought that they had suspended GPs in the past.

Dr Patterson:

The profession has always worked with the boards to persuade people to opt for voluntarily suspension. Only the tribunal and the GMC can suspend a GP, but, in the Province, where everyone knows one another, we have always managed to make the system work without any formal powers, and secure help for people when appropriate. Formal powers do exist, but the difficulty for the boards is that they cannot invoke those powers; they have to go through the tribunal or the GMC.

Mrs Hanna:

Which body is the profession’s real disciplinary body: the tribunal or the GMC? If there were a serious allegation, to which body would one go first?

Dr Patterson:

That depends. If the malpractice were serious enough —

Mrs Hanna:

Whose takes the decision?

Dr Patterson:

The only organisation with the ability to withdraw a doctor from doing his work is the GMC, which can remove him from the medical register. However, before that point is reached, the tribunal has the power of suspension.

Mrs Hanna:

If someone is concerned about a colleague and believes that that person is unsafe to practise, for whatever reason, whom should they contact?

Dr Dunn:

Dr Patterson and I have both been involved in this area. Frequently, representatives from the local medical committee and the board will visit a practitioner, point out the concerns that have been expressed and tell the person that he or she would be better not practising. If the practitioner accepts that advice, the board would usually arrange for locums to run the practice, and, if a mental-health problem were involved, attendance at a psychiatrist would be encouraged until the problem is resolved. If the practitioner were deemed dangerous and would not accept the advice, he would be reported to the GMC. I have had to do that.

Mrs Hanna:

It has been said that doctors should take decisions for themselves. I think that there has to be a certain amount of independence, and it has been said that there are some independents on the tribunal. However, at times, there must be someone from outside who can take decisions. Lines of authority must be clear for the safety of patients and doctors and for public confidence. We can get bogged down in the language of legislation, and it can be difficult to pick up exactly who is accountable, particularly when people raise a variety of concerns.

Dr Patterson:

The tribunal comprises predominantly laypersons, but doctors are involved too. The GMC’s fitness to practise committee comprises 50% doctors and 50% lay people. Therefore, the days are gone when only doctors regulated doctors, and we do not advocate that. However, as doctors, we feel that we have something to contribute to the decision-making process.

Mrs Hanna:

It can be difficult to ascertain who holds accountability because there seems to be three or four bodies involved.

Dr Patterson:

I agree, and we do not need another one.

Dr Deeny:

I hope that I do not have a conflict of interest, but I agree that doctors must be accountable to their patients.

My question has, perhaps, been answered in reply given to Bob Coulter. It concerns me greatly that boards will take over the investigative role completely. First, the boards are supposed to be being replaced by local commissioning groups. What will happen if that takes place? Secondly, what do you see as the roles of the GMC and the Medical Defence Union (MDU)?

Dr Patterson:

I will answer the latter question. The GMC must be able to remove a doctor’s registration. It also must have the ability to assess a doctor’s fitness to practice before that becomes an issue involving registration and make recommendations that either the doctor’s practice be restricted, as we said earlier, or that the doctor needs some remedial action. The GMC must be able to insist on that. All those powers do exist, but they will be strengthened through the ongoing Donaldson Review, and that is important.

The MDU must be involved, purely because, if a doctor were suspended, it would act in his defence. It would examine the issues and try to defend or advise the doctor. It has a vast array of knowledge, based on the cases that it has dealt with over the centuries. The Assembly and the Committee would find the organisation’s guidance invaluable on what can go wrong and what the deficiencies would be in trying to fix them.

Dr Dunn:

The boards will be replaced by the health and social care authority (HSCA), and it will have exactly the same powers. Like Mrs Hanna, we are concerned about legislation. Legislation can seem reasonable until someone on a board interprets it in a totally different way. What can seem a benign provision in legislation can become draconian when someone who does not understand the issues implements it.

Dr Deeny:

I have two follow-up questions. Would it be a good idea for the public to be made more aware of the process, and should the process stay the same, with the tribunal being shared between medical professionals and others?

Members of the public are concerned because they are not sure what happens when a complaint is made against a GP. Would it not be a good idea to make the public aware of the process?

Dr Patterson:

We would have no difficulty introducing a programme of information for the public. I doubt whether members of the public are aware that the tribunal exists. The majority are aware of complaints procedures, and we have a duty to advertise those. That could be strengthened.

These issues are vital, but, to put them in perspective, they are rare. However, the public should be made aware of the procedures, and public representatives should know how to advise their constituents if they need to make a complaint. The difficulties occur when people do not know what to do. The procedure is complex, but it could be even more so if other options were put on the table. We need a programme of information, so that patients and their representatives know what to do in certain situations. If, for example, patients suspected a doctor of “doing a Shipman”, to whom would they turn? That is important.

However, the biggest task is in making people aware of the initial complaints process. It is vital that we improve that, rather than add more complications.

Dr Dunn:

I support that, because members of the public are sometimes their own worst enemies. Obviously, doctors develop professional relationships with patients, and sometimes those patients can be too understanding. I have known doctors who have been underperforming, but their patients have excused them. It would be worthwhile publicising what should be done. The measures should not be seen as draconian. If a doctor is underperforming for a reason, he can receive help, and that information would help patients.

I can talk about an incident that happened years ago because the person involved is dead. One of a particular doctor’s patients used to describe him as a great doctor when he was sober. The patient was excusing him, and that is understandable. The BMA would not excuse him, but his patients let him get away with that because of their relationship with him.

Patients need to know how to address issues. We are in favour of not hiding anything. We want patients to have the service they deserve and to know what to do if they do not get that service.

Mr Buchanan:

As regards the answer given to Alex Easton about automatic suspension, which the BMA may feel reluctant about, or feel that other practices could be in place, it was said that if a doctor showed incompetence in treating or diagnosing children, that should not prevent him from working with adults.

If such a thing were to happen in a practice, especially in a rural area, where a fair percentage of that practice would be taken up by children’s services, it would have an added, knock-on effect in that area and would cause concern and discontent. Automatic suspension would not cause the same disruption.

Mr Patterson:

There are two ways of looking at that. It would be even more disruptive in a rural area if a doctor’s total capacity were removed. That would leave a deficiency that might be difficult to fill in the present environment. It would be better to leave some capacity in place and find an alternative way to meet the deficit.

However, that may not always be possible, and I accept the example given by Mr Buchanan. In such a case, it may not be possible to have a partial suspension: it may have to be total. But the opportunity to save some service provision, where possible, ought to be taken, or a community could be left even more vulnerable. That may not always be appropriate, but it is an important consideration.

Dr Dunn:

Northern Ireland has about 120 locum doctors, but ask any GP about how easy it is to employ one and he will tell you that it is absolutely impossible. It is not easy to replace a GP quickly. Patients could be left without a service or with a service in which they would have a different doctor every day, and where there would be no continuity of care.

Dr Patterson:

There are examples in secondary care where that can happen. There have been cases in which consultants have raised questions about the ability of a surgeon to carry out a procedure but the surgeon has not been suspended from doing all procedures. He would have been suspended from that procedure, or from operations but would have still been able to work in outpatients. Total suspension should not be a simple or first option. It should be the last resort.

Mr Gallagher:

There are high standards among GPs and there have been very rare occurrences when the tribunal procedure has had to be invoked. The difficulty with suspension is that individuals are presumed guilty until proven innocent. The alternative would be to leave things as they are but make people more aware of current procedures in order to engender the greater confidence that has been talked about.

Is there a rule about how late, or how soon, a tribunal comes into play after a report or serious complaint about an incident? If the doctor involved decided to engage in a series of ploys to delay the hearing for as long as possible, what would happen, and are you happy with that situation?

Dr Patterson:

Dr Dunn and I have been involved with systems that were frustrating in the length of time they took. Making a tribunal, which is the first real port of call, more responsive and timely would solve that problem.

It could be done, and it would be fairer than holding some sort of kangaroo court before the tribunal had time to consider a case. It would also be much fairer way of tackling the issues in that the tribunal would hear not only from a board official but from professional and lay representatives also. The current process needs to be strengthened and made more efficient and responsive — we are strong advocates of that. As a second line to what we are doing, it would also make people aware of the process.

However, we need to put the matter in perspective. What is the size of the problem that we are trying to address? Should that problem be addressed using the proposed legislation, or do the planned provisions simply mimic what has happened elsewhere? We are a fairly unique community and — thankfully — we can now make our own decisions about such matters, so we can have this discussion rather than just blindly follow others.

Both Dr Dunn and I have been frustrated by the fact that the process is not as quick as it should be. It needs to be quicker in order to protect people. However, the issues need to be solved through the proper people — lay representatives and the profession — working together rather than by simply allowing some official to make a judgement.

Dr Dunn:

We are not trying to cloud the issue or to delay matters. As Dr Patterson said, we have been frustrated in the past, and we want a system whereby cases are dealt with quickly.

The Chairperson:

Gentlemen, I hope you feel that you have been given a fair hearing. It is lovely to see you all again. We will no doubt see much more of each other as time goes past. Thank you very much for coming and God bless.

The Chairperson (Mrs I Robinson):

Welcome Ms Claudette Christie, the director of the British Dental Association Northern Ireland, and Mr Seamus Killough, the chair of the British Dental Association Northern Ireland council. Ms Christie will make a 10-minute presentation, which will be followed by questions from members. I ask Ms Christie to deal specifically with the provisions in the Bill and to indicate which clauses, if any, should be amended. Questions from members should preferably be aimed at further elaboration or clarification of the specific issues. After the 10-minute presentation, there will be approximately 20 minutes for questions.

Ms Claudette Christie (British Dental Association Northern Ireland):

We are pleased to be here, and I thank the Committee for the invitation.

To give some overview, the British Dental Association (BDA) is the professional association and trade union for dentists. We represent more than 20,000 dentists across the United Kingdom and the majority of dentists in Northern Ireland. We are delighted to be giving evidence to the Committee, and we have provided a supporting written submission.

Normally, we lobby politicians to recognise the problems that the public face in accessing dental services, and we will look to the Committee for similar recognition of those issues. We want to work towards ensuring that Northern Ireland develops a properly resourced dental service that provides the public with high-quality dental care that meets the needs of patients and, ultimately, improves the appalling oral-health record in Northern Ireland.

Northern Ireland’s oral health is the worst in the UK, and it compares poorly with that of the Republic of Ireland. Northern Ireland’s 12-year-olds have more than double the level of tooth decay than their peers in the rest of the UK. Tooth extraction is the largest single reason that children in Northern Ireland receive general anaesthesia. Poor oral health affects people’s general health and life chances. BDA Northern Ireland believes that steps should be taken to address and reduce those inequalities.

I am sure that the Committee is aware that a primary dental care strategy for Northern Ireland was launched in 2006. That strategy proposes fundamental changes to the way in which dentistry is provided. It includes the introduction of local commissioning and a new contract for high street dentists. Indeed, some of those matters are covered in the Bill. The strategy offers a unique opportunity to transform dental provision in Northern Ireland and to address the poor oral health that prevails.

The costs of running a dental practice have continued to outstrip the funding that is provided to manage it. The symptom of that is now much more apparent in Northern Ireland, as patients find it much harder to get access to Health Service dental care. The BDA is concerned about that, as well as about the historic underfunding of dentistry and the growing demands on the profession that make that access increasingly difficult.

Dentists have a crucial role to play in patient education and in the promotion of good oral health. For instance, dentists detect the majority of mouth cancers during routine patient examinations. Oral health promotion and preventive dental care require dentists to spend adequate time with their patients. However, the ability to do so is currently missing. More than two thirds of high street dentists in Northern Ireland believe that they are unable to spend sufficient time with individual patients in order that they can take a more preventive approach to care. The BDA, therefore, calls on the Northern Ireland Assembly to ensure that any new arrangement proposed by the primary dental care strategy should improve oral health and assure the quality of dental care that is provided to the public. New arrangements should address the escalating costs that dental practices experience in providing that service, and they should ensure stability for and give additional funding to dentistry.

The representatives of the BMA said much of what we would say about the Bill, and we are grateful for that. Although the BDA recognises that changes to the powers of the Health Service tribunal and boards are necessary, we are concerned at the introduction of an additional ground under which a tribunal may deal with a practitioner. That ground is unsuitability by reason of professional or personal conduct, and it needs to be clarified.

The Bill also fails to recognise the role of the UK regulatory body for dentists, the General Dental Council. There is a proposal to extend the categories of person who are subject to the jurisdiction of the tribunal. The BDA requires clarification on how that will be extended and to whom. For example, the General Dental Council is about to register by statute dental care professionals. Clarification is needed on how that will be progressed.

Like the BMA, the BDA is concerned at the proposal that a local practitioner can be suspended without the right of appeal once a board has decided that there is a case to answer. It is inappropriate to classify that as a neutral act. It can never be a neutral act to suspend someone and withdraw his or her ability to make a living and provide a service to, for example, a local community. A right of appeal and a review mechanism should be attached to that local suspension. The local impact of suspension should also be addressed.

We echo what the BMA delegation said about payments to suspended practitioners. It is imperative that there is clarity about the payments that suspended dentists receive. Suspension must not penalise the practice or the service delivery. Although that is appropriate for all communities, it may have more of an impact on rural communities.

Many of the primary dental service provisions are already in place in England, but in a different way. BDA Northern Ireland accepts that there are provisions in the Bill that would facilitate local commissioning, which can take place in various ways. Northern Ireland does not have to follow the same format that exists in England and Wales, although there are lessons that can be learned. Therefore, the proposed addition of article 61E to the Health and Personal Social Services ( Northern Ireland) Order 1972 — “General dental services contract: disputes and enforcements” — BDA Northern Ireland requests full consultation on the proposals, so that there will be a meaningful resolution of disputes with contracts.

With regard to transitional arrangements, it is imperative that any new contract arrangements are not to the detriment of existing dental service providers. Funding that is dedicated to the provision of dental services must be ring-fenced for that purpose over the transitional period, so that no problems arise in that time.

With regard to disputes over contracts, BDA Northern Ireland suggests that there is professional involvement when resolving disputes. That also applies to the application of a test period in developing a new contract. Clause 3(7) of the Bill says:

“An order made under this section shall be subject to negative resolution.”

Legislation arsing from the Bill should be subject to the affirmative resolution procedure and should include consultation with BDA Northern Ireland.

To secure future public dental services, it will be imperative that all the demands and requirements to provide a new contract are taken into account. That will require an investment framework.

The Assembly must acknowledge the poor state of dental health in Northern Ireland and recognise that investment is needed to secure dental services to the public in the future. The cost of change may also be an issue to consider.

We are opposed to clause 15 of the Bill because smoking is detrimental to oral health.

BDA Northern Ireland would like dental public health included, or at least clarified, in the Bill. It is not mentioned in the Bill, despite its input being necessary to secure a dental contract that meets needs of patients in Northern Ireland.

The Chairperson:

How much does it cost to train a dentist? If there is significant public investment in training dentists, does the public not have a right to expect that those who are trained should work in the NHS?

Ms Christie:

I do not know what the cost of training a dentist is. As with all students who go through publicly funded tertiary education, there is no obligation to go into public-service employment.

The Chairperson:

It was mentioned that BDA Northern Ireland is not happy with the negative resolution provision. If that were changed, and the right of appeal against suspension were afforded, would you be happy with the wording?

Ms Christie:

We will consider asking for regulations to be subject to affirmative resolution. The regulations that govern dentistry are of primary importance, and, therefore, the issue should be brought to the Assembly so that a full debate can take place.

Dr Deeny:

As a health professional, I agree with what has been said. There is a concern that health professionals are treated as guilty until proven innocent, and that it almost amounts to a trial by media. However, openness is also important. The public should be aware of what action they should take if they want to make a complaint against a health professional.

I have a responsibility to report any colleague whom I believe to be underperforming. If there is an instance of negligence, I would also be held responsible if I had failed to report that doctor. Is that the case with dentists?

Funding has been mentioned, and it has been said that the dental service is chronically underfunded. Lack of funding is a problem for all Departments, in various areas. What is the difference between private dental work and National Health Service dental work? Furthermore, how could the funding difficulty be alleviated or resolved?

Ms Christie:

If a colleague were underperforming, as with doctors, dentists would have a professional, ethical duty of care to make their concerns known. That can be done in a number of ways, including through talking to colleagues, highlighting the problem to the board, talking to the medical indemnifiers, and so on.

I have been asked what impact underfunding has on the dental service. We are aware of the impact, because patients are telling us that they are finding it harder and harder to receive Health Service dental care. That is frustrating for patients, but it is also frustrating for dentists. That situation has arisen as a direct and long-standing result of the contracts under which dentists work.

Dentists are paid fees, which are set by Government, for the treatment that they carry out. Out of those fees, dentists pay all their expenses, including building expenses, staff and equipment costs, any costs for meeting the legislative and regulatory burden, such as to comply with health and safety requirements, and so on. The fees for treatment are depressed and have not kept pace with expenses — never mind with other factors such as modernisation. The result is that dentists must work faster in order to meet their expenses. That creates a treadmill effect, which has been well recognised by the Audit Commission. The situation that a professional should have to work in this way is not sustainable. Therefore, for those reasons, dentists are forced to leave the Health Service.

BDA evidence shows that dentists are reluctant to leave the Health Service. However, they do so to enable them to give patients more time, more choice and an improved service.

Rev Dr Robert Coulter:

Thank you for attending the Committee.

What would be a suitable contract for a dentist?

Ms Christie:

Negotiations with the Department are ongoing. Therefore it may be out of turn to talk about a suitable contract.

It may be helpful to highlight a comment to the Committee by the acting Chief Dental Officer on 24 May 2007, when he said:

“we want to pay dentists for their time and insert appropriate performance measures”.

The entire focus of the current dental contract is about treatment, but that treatment must have prevention as its basis. Without that focus on prevention, Northern Ireland will continue to have the worst dental health in the UK and Ireland, and that is inappropriate.

Moreover, Northern Ireland’s young population continues to have poor dental health. There are also people in the older population who have complexly restored mouths, and they have more teeth than our parents have or had. There are problems at both ends of the spectrum. It is therefore imperative to prioritise the need for improved oral health. In order to do that, prevention must lie at the basis of the contract.

However, resources and innovative measures will be required for that to happen. Any new system should be fully piloted and tested before it is rolled out. The Committee will have a key oversight role to play in order to ensure the development of a properly resourced public Health Service for patients of which dentists will want to be part.

Mr Seamus Killough (British Dental Association Northern Ireland):

It is not only the message of “clean your teeth twice a day” that must be conveyed. Any new contract must recognise the role of dentists in all areas of prevention — be it smoking cessation, oral cancer screening, fluoride advice — and the contribution that they can make.

Heart disease and cancer are the biggest causes of death in the developed world, and smoking and poor diet are two key risk factors associated with those conditions. However, smoking and poor diet also relate to dentistry; for example, gum disease can occur as the result of smoking, and dental decay can occur as the result of a poor diet. Dr Coulter has an excellent article in the ‘Coleraine Chronicle’ this week, headlined, “Diet, diet and diabetes”. He gives an insight, along with excellent commentary, on the alarming increase in those who suffer from diabetes.

A small number of risk factors impact on a large number of diseases. Oral-health promotion is, and must be, linked to general health promotion. In order to incorporate the prevention of dental decay into the practice, it must be recognised in any payment system.

The Chairperson:

While the officials are present, I wish to clarify an issue under clause 2.

What determines whether regulations are subject to negative resolution or affirmative resolution? If that were to be changed in the Bill, would it strengthen or weaken the reasoning behind the negative resolution procedure?

Mr Robert Kirkwood (Department of Health, Social Services and Public Safety):

Statutory rules subject to negative resolution is more frequently used, with 90% of rules being made under that procedure. That requires the Statutory Rule to be laid before the Assembly as soon as possible after it is made. The Committee for Health, Social Services and Public Safety decides whether it wishes to consider the Statutory Rule, and it can call officials if required. The Committee could then table a motion to annul the Statutory Rule.

The main difference between negative resolution and affirmative resolution is that the affirmative resolution procedure requires a Statutory Rule to be approved by the Assembly before it is made. That is the main difference. The majority of secondary legislation made during the previous period of devolution was made under negative resolution. The Committee can still consider the rule and, if so desired, the Committee could pass a motion to annul the Statutory Rule, even though it is made.

The Chairperson:

The Committee will have a chance to discuss that when it scrutinises the Bill at Committee Stage.

Thank you, Ms Christie and Mr Killough, for your attendance and for making your presentation.