There is a great, big, fat lie at the heart of the Government's new proposals to overhaul regulation of the medical profession, writes writes Mary Raftery.
Responding to enormous public disquiet in the wake of the Neary scandal at Our Lady of Lourdes Hospital, Drogheda, Minister for Health Mary Harney has been busily promoting her new legislation as a vast improvement over the old 1978 Act.
Published last week, the Medical Practitioners Bill 2006 is one of the longest awaited pieces of legislation in recent years. It has been ritually promised each year by successive ministers for over a decade.
So, has it been worth the wait? The answer must be a resounding negative. In almost every respect, it fails to provide an effective, independent and transparent mechanism for regulating the medical profession.
Doctors are permitted in this country to regulate themselves. Despite calls for radical change, Mary Harney described herself earlier this year as "a fan of self-regulation", and indicated that for medics it would stay. What she did commit herself to was an increase in the number of lay members on the Medical Council. This, she seemed to feel, was sufficient to maintain public confidence in the profession.
Instead of three members of the public on the 25-person council (under the 1978 legislation), we are now to have seven - hardly the revolutionary change the Minister promised.
It is true that other professions, such as nursing and social work, will now be represented on the council, but these hardly qualify as lay people. The overall balance of power will almost certainly remain with the medical and ancillary professions.
But (ripostes Mary Harney) the new Fitness to Practise Committee, which adjudicates on complaints against doctors, will in future have a clear majority of lay members.
This, however, is where the Minister employs an ingenious sleight of hand. She has created an extra layer of bureaucracy, a whole new committee empowered to decide whether complaints have enough merit to be even brought before the Fitness to Practise (lay majority) committee. And guess what? The new legislation stipulates that a majority of this pre-hearing committee shall be doctors.
Through this device, the medical profession remain as gate-keepers of the entire system of complaints against themselves. This particular part of the procedure was always the most controversial and the most frequently criticised.
Of the hundreds of complaints against doctors received by the council each year, only a tiny percentage were ever deemed worthy of a full hearing. The rest, well over 90 per cent on a consistent basis, were summarily thrown out.
In 2002, for instance, only 14 of the 405 cases considered went to committee hearing.
There is nothing in the new legislation designed to change this. Having a lay majority on a committee which does not even have the job of deciding which cases it hears is cynical window-dressing, designed to fool the public into believing that it has some role in overseeing the medical profession.There are several other aspects of this miserable piece of legislation which further entrench the power of doctors. For instance, while medics have the right to appeal decisions taken against them, patients complaining do not.
It seems that a public commitment to allow such an appeal for patients, made in 2003 by former minister for health Micheál Martin, has been quietly dropped.
In terms of hearings to be held in public, the status quo essentially remains. Complaints will continue to be heard in private at the request of either the complainant or the doctor. While it is entirely proper that patients should on request have the right to confidentiality, such a privilege should not extend to a doctor under investigation. Complainants will also continue to be denied the right to independent legal representation at hearings, although the doctor is allowed his or her own lawyer. Patients have identified this as a major problem with the system. Their complaint is put to the doctor at a hearing by a staff member of the Medical Council, with whom they often have limited contact. Without their own representation and right to cross-examine the doctor, complainants frequently feel disadvantaged and isolated. The new legislation makes no effort to address this.
Further, although it is to be welcomed that the council will have statutory powers to audit the continuing competence of doctors, this procedure and its results will by law remain secret. Members of the public will have no right to inspect information on the competence of their own GPs or specialists.
In fact, the new Bill specifically identifies criminal penalties for any breach of confidentiality in this area. One has to ask whose interests are best served by this secrecy?
The new legislation identifies the object of the Medical Council as the protection of the public. Yet, it continues to rely on the medical profession to do this. We are back to the bad old days of "doctor knows best". What we, the public, know best is that this simply does not work. It seems, however, to be a lesson not yet learned by the Minister for Health.