Some doctors may remain gravely concerned about any dilution of the tradition of self-regulation, and any erosion of the independence of the Medical Council.

Yet, the inescapable conclusion for many, if not most, lay people – and for the politicians that will enact this legislation – is that a well-structured system of peer review and competence assessment would at best, have prevented the medical malpractice of disgraced obstetrician Dr Michael Neary from going unchecked for so long. At worst, such a system could have have exposed the inadequacies in peer review of Dr Neary’s work.

It is unfortunate that the professionalism of the many has been so badly tarnished by the actions of a few, and that the mistaken impression has grown that incompetence is rife among our doctors. But we are where we are, and the question now must be how best to move forward from here in a balanced, effective and sustainable way.

On the ropes

The Medical Council has taken a pasting, in many cases unfairly, from those who argue from the mistaken premise that its real purpose should be to represent professional interests, rather than to act as a guardian of the public interest.

Yet a glance at the policy aspects of its submission to the draft heads of the Medical Practitioners Bill suggest it is trying desperately hard to find the delicate balance between professional needs and public concerns. It believes the best outcome for all sides will be achieved if:

• The existing, doctor-dominated governance structure continues;
• The independence of the decision-making process is shielded from undue influence or interference by political and professional interests;
• The burden of a bigger role is not met solely from registration fees; and
• The education and training committee is put on a statutory footing.

Legally obliged

Head 19 of the Bill provides that all 25 Council members are legally obliged to represent the public interest. It goes on to say that 12 of the members must be medical doctors and that some of the remaining 13 may be medical doctors, so long as seven of them are not, or ever have been, medical doctors. The President must be a medical doctor.

The Medical Council points out, however, that there is no other country where the regulatory body may have a non-medical majority. It could be argued though that Head 19, if implemented as proposed, will not guarantee a non-medical majority on the Medical Council at all times — and even if it did for some of the time — that this would necessarily and always create a hostile regulatory environment for doctors.

Indeed, there is good evidence from international experts on governance, that it is not the structure of the Medical Council which would be the most important factor in striking the right balance between professional need and public interest, but the behaviour of members, both medical and non-medical, in building trust and respect for each other, and collectively treading a path that will maximise the public’s confidence in the profession, and the profession’s confidence in the regulatory regime.

The Medical Council has also expressed serious reservations that the assignment of powers of direction to the Minister for Health, will compromise its independence, and its ability to shield its decision-making processes from political and professional demands and pressures.

Powers of direction

The Minister has noted that such powers of direction are conferred generally in legislation; and there are numerous recent examples where this is indeed the case, including the Health Act 2004, the Health and Social Care Professionals Act 2005, and the Road Traffic Act 2006.

However, to the extent that such provisions would ever be required to be exercised, it would be to ensure that an agency fulfils its statutory remit, rather than to browbeat a board into doing the bidding of the Minister.

Education and training

What isn’t yet clear is how all of the additional education and training functions to be vested in the Medical Council will be funded and, where necessary, underpinned in new legislation. It is here that the real battle should– and must– be fought.

The Council has urged that the financial burden associated with its increased role in medical education and training should not fall solely on registration fees. While some funds should be released with the disbandment of the Postgraduate Medical and Dental Board, there will inevitably be a need for more. Any new system must be sustainable.

What price will be put on the need for well-resourced, robust and resilient competence assurance? We need to decide soon, as it will have a vital bearing on the development of the profession for years to come.