Police, Crime, Sentencing and Courts Bill

Lord Kakkar Excerpts

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I support the principle behind the amendments but will make two short points to elaborate on what has already been said. First, I support what the noble Lord, Lord Carlile, said about balance. This has been referred to as a common-law duty, but the common law does not strike hard edges in such matters; it leaves room for balance to take account of particular circumstances.

At one stage in my career, when I was a senior judge in Scotland, I needed to know the state of health of one of my judges, who I knew was terminally ill with cancer. I was able to persuade his doctor, his skilled adviser, to let me know the truth when the judge himself was not prepared to do that. I felt that was the right thing to do; he thought it was the right thing to do; and it was an illustration of balance. The information remained entirely confidential between ourselves, but I had to take a decision as to the extent to which I could trust that judge to continue to sit in open court. The advice I received was very welcome: I was able to allow him to sit in certain conditions, in the light of the information I was given. I give that as an illustration of the way in which balance can operate in practical situations.

The other point to which I want to draw attention is the difference between Amendments 22 and 48. On the one hand, Amendment 22 states simply that

“no information may be shared … which breaches”

the duty set out in the General Medical Council ethical guidance on confidentiality. That is a simple formula that merely requires looking at the way the guidance is expressed; no doubt, with the balances that are built into the guidance. On the other hand, Amendment 48 says that regulations

“must not require the release of personal health information if a doctor regards that release as a breach”

of the duty of confidentiality.

I rather wonder whether that would be the right way to go: to leave it up to the decision of a doctor without further consideration. With great respect to the medical profession, that may be taking a little bit of a risk, because there are situations where a doctor may feel under pressure and that would not be the right thing to do. I think the amendment would be strengthened by taking out the reference to the doctor and just laying it down as a matter of proper structure that the regulations should not require the duty of confidentiality, as set out in the guidance, to be breached, leaving individual doctors’ decisions out of it.

[Lord Kakkar (CB)]

My Lords, I support the principles of the amendments and declare my interest as a registered medical practitioner.

The debate in Committee has been most interesting in this regard, because it raises a delicate and deeply sensitive issue for any practising clinician—any practising healthcare professional—with the suggestion that something that is considered absolutely sacrosanct, the duty of confidentiality, may be in some way undermined.

That is, of course, not to neglect or fail to understand the fact that there are clear circumstances provided in the context of well-recognised and frequently applied professional guidance in which confidentiality may indeed be breached. But there is a suggestion that the way the Bill is drafted, there may be a deeply undermining impact on a very important principle, one that is so well recognised that it is protected in both data protection legislation and, as we have heard, common law. I wonder whether the Minister can explain why it is so important to achieve what are important objectives in the Bill that we need to undermine the common-law effect of such an important principle—confidentiality of medical information—and why they need to be promoted in the way proposed in the Bill. Have Her Majesty’s Government considered other ways to achieve their important objectives without creating this deep anxiety and uncertainty, because the full implications are clearly not well understood by the regulator or by professionals more generally, and which, we must therefore all feel, has the potential to be attended by consequences that could be deeply unhelpful to the nature and solidity of the doctor-patient relationship?

[Baroness Hamwee (LD)]

My Lords, I am well aware that we have some of the most senior lawyers in the country in the Committee today, and very senior doctors who have grappled with these issues, so perhaps I should put my point as a question. If the legislation provides for something that a doctor “regards”, is not the concept of reasonableness implied in that proposition, so the doctor must be reasonable in what he regards?

Global Migration and Mobility (EUC Report)

Lord Kakkar Excerpts

Thursday 6th June 2013 Lords Chamber

[Lord Kakkar]

My Lords, I, too, join in congratulating the noble Lord, Lord Hannay, on having secured this important debate and on having led Sub-Committee F in the production of this exceedingly important report on migration.

I will confine my remarks to the dependence that we have in Europe on the migration of those professionals involved in the delivery of healthcare. In so doing, I declare my own interest as professor of surgery at University College London and a member of the General Medical Council, the regulator for medical professionals in the United Kingdom.

In our own country, it is clear that we have been absolutely dependent over the past four or five decades on the migration of skilled workers in healthcare—doctors, nurses and other healthcare professionals—to ensure the delivery of a successful National Health Service. I myself am the son of two medical practitioners who came to the United Kingdom in the 1960s to continue their own postgraduate education and were given the chance to develop their careers here, both as academics and clinical practitioners.

The ability of practitioners from other countries to come and settle in the United Kingdom before our accession to the European Union required their ability to demonstrate to the General Medical Council that they had a base of undergraduate medical education and training that justified their registration with the GMC. Similar requirements existed for nursing practitioners and others who decided to come and settle in the United Kingdom and contribute to the delivery of healthcare. Without that substantial contribution to our workforce, it is well recognised that we would not have been able to deliver a successful health service.

Many thousands of students from third countries have come, not only to the United Kingdom but to other member states in the European Union, to pursue their postgraduate education in medicine and other medical specialities. They make a tremendous contribution academically in many of the courses in which they participate. If they come for clinical training, they make a very important contribution to the delivery of healthcare to our fellow citizens. On completing their training, many of these postgraduate students will return to their own countries and go on to have substantial influence in their own healthcare systems, for example leading hospitals, leading academic institutions or developing services. They will rely on what they were able to learn during their period of training in our country to inform the decisions that they take. Those decisions will, very frequently, involve the procurement of technology, disposables or the products of our pharma industry, which are vitally important in driving exports from our country to those other nations.

We must not underestimate the vital importance that the participation of foreign medical graduates—both those who have decided to remain in our country and those who have decided to return to their own after a period of training—make to our vital life sciences industry, which is considered second only to the financial services industry in the impact it has in financial and economic terms and on the potential for growth in our country.

Recently, important questions have been raised about the requirements and, indeed, about the consistency of the requirements for registration in our country for medical practitioners and other healthcare professionals. This is a vital issue, where there is substantial opportunity for misunderstanding among the general public if they lose confidence in the consistency of registration requirements for all medical practitioners who they might come across, particularly in acute situations, when they are most vulnerable and most anxious.

At the moment, the General Medical Council is able to provide registration for all undergraduates—those graduating after receiving a primary medical qualification from any of the 32 recognised medical schools in our country. Those individuals have a right and entitlement to be registered by the GMC after completing their first year following qualification. There are about 160,000 such individuals on the GMC register at the moment.

The second category of doctors entitled to register are those who come from the European Economic Area. There are some 25,500 such individuals on the register at the moment. They must demonstrate that they have a qualification from a recognised institution in the European Union; they can then register without the General Medical Council testing their language skills or their professional competence. In general, that has worked reasonably well, although there have been incidents where language skills have been wanting and patient safety has been jeopardised. Her Majesty’s Government have agreed that under forthcoming legislation it will be possible in future for the General Medical Council to test the language skills of doctors who have qualified and who are registered in the European Economic Area if there are concerns at the time of registration, or afterwards, about their language skills—but not their other professional skills, which I still think is an area of concern.

The third category of registrants are known as international medical graduates, of which there are 67,000 on the General Medical Council register, and they come from outside the European Economic Area. They have to demonstrate to the council that their primary medical qualification is satisfactory and that the content of their postgraduate training meets requirements in the United Kingdom. The GMC is able to make very careful assessment of both their language skills and their professional skills with the PLAB examination.

However, concerns have been raised recently about this category of clinician, specifically those coming from a third nation outside the EEA who have settled in an EEA country and then choose to come and work in our country. There the situation is much more confused because it relates to enforceable community rights that exist for these individuals. They may have the right to remain in the European Economic Area but the ability of the General Medical Council to have clarity in terms of testing their language and professional skills with regard to registration if they wish to come and work in our own country is much less clear.

For those individuals from outside the European Union without an enforceable community right, the General Medical Council is still able to treat them as international medical graduates and look at both their language and professional skills. However, for those third-country nationals with an enforceable community right, where their qualification has been recognised elsewhere in the European Economic Area, that right for the General Medical Council to test language and professional skills no longer exists. For third-country nationals who have an enforceable community right but no recognition of their qualification, those individuals are still able to seek registration by the General Medical Council, and the GMC is not able to test language and professional skills.

As we have seen in this important report, the changing demographics in the European Union may require us to have to count upon larger numbers of healthcare professionals from third nations to come and work in the European Union and in our own country if our healthcare system is going to be able to continue to meet the demands of an ageing population with chronic disease. To ensure that the people of our country enjoy the confidence, at times of anxiety and vulnerability, that the medical practitioner in front of them, whoever it may be and from whatever background, has the same skills as any other doctor that they may come across, there needs to be a single and clear process for the registration of all doctors in our country and indeed in all other European nations. It will be important for all member states in the European Union to be able to satisfy these requirements for their own people, bearing in mind that the delivery of healthcare is as much a technical business as it is extremely sensitive to local culture and values.

Is the Minister in a position to provide some further information on how far discussions with European partners around the question of language and skills testing have progressed? In particular, how will the movement of individuals from third countries across European countries, and individual member states recognising their qualifications, be addressed?

Queen’s Speech

Lord Kakkar Excerpts

Thursday 9th May 2013 Lords Chamber

[Lord Kakkar]

My Lords, I should like to use the opportunity afforded by this debate on the humble Address, with its particular emphasis today on the matter of equalities, to consider an issue that was not directly mentioned in the gracious Speech but may well be considered among those other measures that will have to be considered by Her Majesty’s Government during this Session. That is the question of gender equality on the boards of publicly listed companies, which is currently being considered by the European Parliament. A directive was considered by your Lordships’ European Union Sub-Committee B during the previous Session, and a report on that matter and the sub-committee’s consideration of it was debated in your Lordships’ House. At this point, I remind noble Lords of my interest as a member of that sub-committee.

The directive proposes that a quota will be set at 40% to ensure that there is gender equality on the boards of publicly listed companies within the European Union, and that, if companies fail to achieve that, sanctions will be applied against them. There is no doubt that achieving gender equality on the boards of publicly listed companies is vital. Much work has been done on that matter. Indeed, the report of EU Sub-Committee B clearly highlighted the vital loss of talent if women are not appropriately appointed to the boards of publicly listed companies.

A reasoned opinion was sent from your Lordships’ House and, indeed, from the other place, to European institutions in November last year, because serious concerns were raised about the nature of the directive and, indeed, a potential infringement of subsidiarity. The use of the reasoned opinion—the so-called yellow card—is a mechanism defined in the Lisbon treaty that provides for a test by Parliaments, rather than by Governments, of subsidiarity issues. The yellow card, which was the first stage in that subsidiarity test, required nine Parliaments in the European Union to send a reasoned opinion raising subsidiarity concerns. Regrettably, only six did so, so the mechanism to test subsidiarity failed.

Other concerns were also raised in consideration of the proposed directive with regard to whether the European Union had demonstrated that there was European added value by having a directive at European level mandating a 40% quota, rather than national Governments taking action themselves. There were also serious concerns about whether it was legal in European terms for this type of sanction to be applied against publicly listed companies if they failed. Nevertheless, the ability of that part of the subsidiarity test procedure to achieve a resolution of this matter had failed.

Moving forward, two committees of the European Parliament are now considering the directive and eventually it will come back to the Council of Ministers to be finally considered, approved and then sent to national Governments for transposition into domestic legislation. However, a serious concern arises with regard to the broader approach that our country has taken towards equality legislation. The Equality Act 2010 permits positive action but defines positive discrimination as unlawful and considers a number of potential situations of positive discrimination, of which one is the setting of quotas; that is made very clear in the Act. Under those circumstances, if the directive was agreed by majority voting at the Council of Ministers and returned to this Parliament for transposition, how would Her Majesty’s Government deal with setting a quota in domestic legislation, which would appear to be contrary to the terms laid out in the Equality Act 2010 as it represents positive discrimination?

Serious concerns arise beyond the important issue of ensuring gender balance on the boards of publicly listed companies. If a quota were to be established for that, would it undermine the standing of equality approaches and positive action in other important areas of equality legislation in our country, given that there is no quota for those issues but there is for gender balance on boards? That could have a serious undermining effect. Would the transposition and adoption of this directive into domestic legislation require a change to the Equality Act 2010 to ensure that setting quotas is no longer defined as unlawful in that Act? Indeed, might other measures be required? One possibility is to have a period during which a quota is allowed to apply. This is certainly the case with regard to the Sex Discrimination (Election Candidates) Act 2002, which permitted all-female lists for parliamentary elections, European elections, certain local government elections and elections to the Welsh Assembly and the Scottish Parliament, but had a sunset clause which ensured that that provision ended in 2015. However, it was extended to 2030 under an amendment to the Equality Act 2010.

My reason for raising this issue now is that during this Session of Parliament it will have to be considered once again either by committees of your Lordships’ House or, indeed, by both Chambers of Parliament. Will the Minister provide further guidance on the approach Her Majesty’s Government propose to take to this important issue?

Minority Ethnic and Religious Communities: Cultural and Economic Contribution

Lord Kakkar Excerpts

Thursday 24th May 2012 Lords Chamber

[Lord Kakkar]

My Lords, I too congratulate the noble Lord, Lord Bilimoria, on having secured this important debate and on his thoughtful introduction to it. I take the opportunity afforded by the debate to draw your Lordships’ attention to the important contributions made by healthcare workers and doctors from the Indian subcontinent to the delivery of healthcare in our country. In so doing, I declare my own interest as consultant surgeon at University College Hospital in London and professor of surgery at UCL.

It is well recognised that, since its inception in 1948, the National Health Service has been dependent on the dedicated service and contribution of a wide range of communities, many from overseas, to ensure that healthcare can be sustained and delivered to all parts of the country. It is clear that, without those important contributions, not only the delivery of everyday care but many important advances in biomedical research and developments in our healthcare system would not have been possible.

I am the son of two doctors who completed their medical education in India and came here to the United Kingdom to complete their further education and training in 1961. They were able to come here because of a long-held national consensus that has welcomed those from a diverse range of communities who are prepared to come here, integrate and make a contribution to society more broadly. In return they were given opportunities to advance themselves. My mother continued to practise as an anaesthetist. My father was a professor of surgery and undertook fundamental research to identify the problem of thrombosis blood clots that occur in patients after surgery. He developed methods of preventing post-operative thrombosis that have changed clinical practice and saved the lives of many hundreds of thousands of patients around the world.

Contributions have been made in many other areas. Many from the Indian subcontinent made a contribution by going into general practice in difficult and deprived areas and delivering dedicated service. One of the great challenges our healthcare system now faces as these practitioners retire is how we continue to ensure that universal healthcare is provided in all parts of our country.

However, many people went back home to India and other parts of the Commonwealth where they made important contributions. What they learnt in our country drove them to adopt systems, technologies and outputs from the United Kingdom. Therefore, our life sciences and healthcare industries had a huge influence in the Commonwealth and the Indian subcontinent as a result of the training that those young doctors received in our country. As our national gaze turns more to the European Union, what arrangements will be made to continue to encourage medical trainees from the Indian subcontinent and the Commonwealth to come and complete their training here? How will we ensure that those opportunities are not lost so that those trainees go back to their countries fully understanding the great contributions that our own country has made to healthcare and promoting our life sciences industries in their countries? How will we ensure that the broad diaspora of doctors and other healthcare professionals from the Indian subcontinent are able fully to engage and promote our healthcare and life sciences industries in India and other parts of the Commonwealth? We should not forget that some 44,000 out of 240,000 registered doctors in the United Kingdom declare themselves Asian or British Asian—some 19%. It is vital that the resources which these fellow citizens bring are fully engaged to promote opportunities for British healthcare around the world.