Health and Social Care (Safety and Quality) Bill

Friday 6th February 2015 Lords Chamber

Second Reading

13:27

Moved by

[Lord Ribeiro]

That the Bill be read a second time.

Relevant document: 16th Report from the Delegated Powers Committee.

[Lord Ribeiro (Con)]

My Lords, I declare an interest as a past president of the Royal College of Surgeons and current chairman of the confidential reporting system for surgery, CORESS, the aim of which is to record near misses during surgery in a similar way to how the confidential reporting programme for aviation contributes to airline safety. I am grateful to the honourable Member Jeremy Lefroy, MP for Stafford, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government, the opposition Members who spoke in all stages of the Bill in the House of Commons and, in particular, the honourable Member Jamie Reed, MP for Copeland.

“First, do no harm” is a guiding principle that all doctors embrace as they start their medical careers. It comes from the Hippocratic oath, which many newly qualified doctors still take, which says:

“With regard to healing the sick, I will devise and order for them the best diet, according to my judgment and means; and I will take care that they suffer no hurt or damage”.

As a young doctor starting my first surgical house job in January 1968, I was made all too aware by my consultants that my first duty was to ensure the safety of my patients.

Jeremy Lefroy was motivated to introduce the Bill because of the concerns of his constituents, Julie Bailey of the Cure the NHS Campaign, who challenged the care given to patients at Mid Staffordshire NHS Foundation Trust, and Ken Lownds, a champion of patient safety. The subsequent two inquiries by Sir Robert Francis identified appalling failures at the trust, which became apparent only after visits by the Healthcare Commission. The findings from Mid Staffordshire and Winterbourne View confirmed that harm to patients was occurring across health and social care services. Many of Sir Robert Francis’s 290 recommendations have been adopted and are part of the new inspection process adopted by the Care Quality Commission. One would hope that that would be the end of it. However, how many times have we heard after such an event, “Never again” and “Something must be done”?

The Bill arises from a determination to see that what happened at Mid Staffordshire and Winterbourne View will never happen again. It seeks to put the safety of patients at the very front of all inspection processes by the CQC. As Jeremy Lefroy stated at Second Reading:

“Of course, legislation on its own will not guarantee safe and high-quality care—leadership, culture and resources are all vital elements—but by making it clear in law what is expected of those providing health care, the Bill will go a long way to doing so”.—[Official Report, Commons, 7/11/14; col. 1080.]

Thus, Clause 1 amends the Health and Social Care Act 2008 to make it clear in legislation that it is the duty of the Secretary of State to ensure that patient safety should be a priority at the forefront of any inspection of hospitals, GP practices and care homes by the CQC. It makes explicit what is implicit. Clause 1 changes the Secretary of State’s power to a duty, replacing “may” with “must” to ensure that all health and social care providers have one objective: the avoidance of harm to patients and members of the public in their care.

Clause 1 refers, in new subsection (5B)(b), to avoidable and unavoidable harm. It might be helpful to explain that to noble Lords by reference to a surgical procedure with which I am more familiar. During surgery for trauma to the abdomen, it may prove impossible to repair collateral damage to the spleen, which it is possible to do in an elective operation. However, in an emergency, removal of the spleen may be unavoidable in order to save life. A notable case of avoidable harm is that which befell Sir Anthony Eden—the Earl of Avon—when, in the course of gall bladder surgery, his bile duct was damaged. The complications that followed blighted his health and subsequent political career.

A test of reasonableness rightly applies in assessing whether harm is avoidable. For instance, before undertaking a colonoscopy, a patient is always warned of the risks of bowel perforation—about one in 500 when I was practising. The patient has a right to expect that the hospital will have the necessary systems in place to deal with any problems immediately, should unavoidable harm occur. New subsection (5B)(b) recognises that dilemma and makes allowance for it. As the Explanatory Notes observe,

“a test of reasonableness applies in assessing whether or not harm is avoidable, to acknowledge the risk intrinsic in many clinical treatments”.

Clause 1 will ensure that all health and social care providers create systems to reduce the incidence of avoidable harm. “Zero harm” is a laudable aspiration, but we received many emails, particularly from the Health Foundation and others, which stressed that zero harm is not achievable. However, as the 2014 NHS England report on “never events” demonstrates, such incidents continue to occur. In 2012-13 there were 329 reported incidents: 83 from wrong site surgery; 42 from wrong implants or prostheses; and 130 from retained foreign objects. Other examples of avoidable harm can be found on the wards, with patients left without food or water—which may be there, but out of reach—low staffing levels which lead to patient neglect, and instances of actual physical harm such as those reported at Winterbourne View. We still have a way to go, but Clause 1 will encourage us to do so by ensuring that there is a legal duty to hold providers to account for the safety of care to patients and service users for years to come.

Clauses 2, 3 and 4 are intended to encourage integration between health and social care services by utilising a consistent identifier of patients and the sharing of information for direct care purposes where that is in an individual’s best interests.

In the debate in the House of Commons on 10 December 2014, Dr Poulter, the Minister for Health, stated that it was the Government’s intention to specify the consistent identifier as the NHS number. That will come as some comfort to the patients who move from hospital to hospital, collecting different hospital numbers along the way, which can often lead to delays in transmitting information. Greater use of the NHS number would make it easier to share information on patients between the various systems in the NHS and the social services, to improve the care given.

As a clinician, I know all too well the vital importance of accurate and timely information to the delivery of care. I am strongly of the view that these clauses, requiring as they do the sharing of information about patients in support of their direct care, and in their best interests, will improve the safety and quality of that care. Requiring the use of the NHS number will facilitate sharing, helping to ensure that information follows the patient, so that information is there when it is needed. This is important whenever care is delivered, but is particularly crucial in the delivery of urgent care, and for patients with complex care needs, when several organisations are working together to deliver the best possible care. Not only will this save doctors and nurses valuable time which could be better spent on caring for patients, it will also reduce the risk of errors caused by a lack of information about a patient’s history. Furthermore, it will spare patients the frustration of having to tell their story over and over again, leading to a smoother, more joined-up experience of care. I am sure that the Minister will comment on this.

In Clause 2, it is important to recognise that there will be vulnerable people and sensitive health services which depend on anonymity to encourage attendance. The duties to use the NHS number and to share information for direct care purposes would not apply when an individual objects or would be likely to object. Dame Fiona Caldicott, who enshrined the six Caldicott principles in 1997 for information governance has, in the recent information governance review for 2013, added a seventh principle:

“The duty to share information can be as important as the duty to protect patient confidentiality. Health and social care professionals should have the confidence to share information in the best interests of their patients within the framework set out by these principles”.

Getting the balance right is important, and Dame Fiona Caldicott noted that after the second Francis report she was struck by the need for cultural change in the NHS. She said:

“A re-balancing of sharing and protecting information is urgently needed in the patients’ and service users’ interests, which is supported by those citizens with whom we discussed these issues”.

Education and training to ensure that staff show respect, compassion and dignity in their dealings with patients, particularly with an ageing population, is crucial if the risk-averse attitude to sharing information is to be overcome. As the newly appointed National Data Guardian, we can rely on Dame Fiona Caldicott to ensure that data are protected.

On 11 March 2013, the noble Lord, Lord Patel, who is not in his place today, introduced a short debate on the Mid Staffordshire Foundation Trust. In my contribution, I referred to the role of the Royal College of Surgeons in providing two reports commissioned by the Mid Staffordshire Foundation Trust following an invited review of clinical services. The RCS was criticised by Sir Robert Francis for not sharing its findings beyond the trust, even though the report, once delivered, was the property of the trust that commissioned it. I had suggested previously a mechanism for reporting concerns about patient safety, following college visits, to Sir Ian Kennedy when he was chairman of the Healthcare Commission and I was president of the college. The role of the Royal College of Surgeons would be to oversee the training of surgeons in hospitals, while the Healthcare Commission would deal with any patient concerns we identify. Sadly, this did not happen as college visits were not reinstated and the CQC took over the role of the commission in 2009. It then overturned a robust system of inspection, which had identified the problems at Mid Staffordshire hospital.

It is worth noting that, following the Francis report, CQC inspection teams now have a larger clinical component. In highlighting the problem of Mid Staffordshire, we must recognise—as the noble Lords, Lord Patel and Lord Warner, did in their contribution to the debate—that there are many excellent NHS hospitals employing staff who should not be tarred with the same Mid Staffordshire brush.

Clause 5 and the schedule set out consistent overarching objectives relating to the Professional Standards Authority and regulators of health and care professions. These are based on a consistent overarching objective of public protection, furthered by three individual objectives of protecting, promoting and maintaining health, safety and well-being of the public; promoting and maintaining public confidence in the profession; and upholding professional standards and conduct. The regulators’ fitness to practise panels and committees, as set out in the schedule, would also be required to consider these objectives. Consistent with this Bill’s theme of safety and quality, this will help confirm that these regulators are able to act to ensure public protection in its widest sense.

The BMA has expressed concerns about the inclusion of maintaining public confidence as an objective for regulators, fearing the use of this consideration as a pretext for initiating the investigation of health professionals through fitness to practise proceedings. It has raised with me the issue of guidance for regulators, declaring how the overarching objective and, in particular, the elements related to public confidence and well-being will be applied in practice. I believe that this is an important issue and I am sure that my noble friend the Minister will be able to give assurances on it.

I have made no reference to the Law Commission’s draft Bill on the regulation of health and social care professionals, which recommends that a single statute for all regulatory bodies should be established to provide an overarching duty to protect the public. I know that the noble Baroness, Lady Pitkeathley, will wish to comment as chairman of the Professional Standards Authority. I will defer to the Minister to deal with the noble Baroness’s concerns.

The Royal College of Surgeons proposed two amendments, taking forward aspects of the Law Commission’s review of the regulation of health care professionals during the Commons stages. My honourable friend Jeremy Lefroy responded that these would not be included in the Bill and that the Government will take these issues forward as part of their response to the Law Commission. I have received emails from the Nursing and Midwifery Council, the General Pharmaceutical Council and others that would wish to see the Law Commission’s proposals introduced as a government Bill. Would my noble friend the Minister confirm the Government’s commitment to legislation? Following the many reports post-Francis on patient safety, including those by Don Berwick and Sir Bruce Keogh, it really is time to put into legislation measures that will make it possible to achieve harm-free care and to ensure that patient information can be identified and shared for the specific purpose of improving care for patients who consent for this to be done.

In conclusion, I thank Jeremy Lefroy MP for introducing this Private Member’s Bill and for his deft hospital pass; the noble Earl and the Bill and policy team at the Department of Health for their many meetings with me; and other Peers and the professional organisations with concerns. I beg to move.

13:44

[Baroness Pitkeathley (Lab)]

My Lords, I congratulate the noble Lord, Lord Ribeiro, on his introduction of his Private Member’s Bill and on the clear explanation that he has given of its contents. Although it is a Private Member’s Bill, it has strong support from the Government—such strong support, in fact, that in another place the Minister was reprimanded by the Deputy Speaker for speaking at unusual length on a Private Member’s Bill. Even if the Deputy Speaker in your Lordships’ House had such powers, I am sure such reprimands to the Minister would be unnecessary today.

It is perhaps unfortunate that the wide-ranging Bill that many in the regulation world were hoping for, expecting and working towards has not found parliamentary time in this Session, although the Law Commission and Department of Health officials continue to focus on a Bill for a future Session, as the noble Lord, Lord Ribeiro, reminded us. Such a Bill with adequate parliamentary time would have given us the opportunity to discuss the whole regulatory framework, but that discussion will be for another Parliament.

I now declare my interest as chair of the Professional Standards Authority for Health and Social Care. I emphasise that it is in that capacity that I address the issues in this Bill, so I will confine my comments to Clause 5. The Professional Standards Authority for Health and Social Care promotes the health, safety and well-being of patients, service users and the public by raising the standards of regulation of people working in health and social care. We are an independent body working to Parliament and accountable to Parliament. We oversee—“audit” might be a good word—the work of the nine statutory bodies that regulate health professionals in the United Kingdom and social workers in England. We review the regulators’ performance and scrutinise their decisions about whether the people on their registers are fit to practise. We have other functions, but those are not the concern of this Bill.

The Professional Standards Authority is concerned that there is a misunderstanding of our functions and that the Bill will make our objectives unclear and contradictory and narrow the scope of our work, thus reducing our ability to promote the health, safety and well-being of patients, service users and other members of the public. I fear this is because the Bill conflates the authority’s role with the role of the regulators. The Professional Standards Authority is not a regulator; it is an oversight body and has no direct relationship with the professionals regulated by the nine regulators. In fact, I do not think it is too strong to say that the Bill muddles the role of the Professional Standards Authority with the role of the regulators, and in doing so is likely to provide less public safety and quality rather than more, which is its aim. Let me expand on that a little.

The authority’s current objective requires it to promote the health, safety and well-being of patients, service users and other members of the public. This formulation provides a helpful clarity that our focus should be on patients and service users first and foremost. This emphasis, of course, reflects the findings of former and recent inquiries—Bristol, Shipman and Francis—and it is vital to maintain that emphasis. Indeed, the noble Lord who introduced the Bill has also emphasised how important that emphasis is. This is particularly helpful given that “the public” includes, of course, the professionals whom the regulators regulate. We have to think about the impact of decisions and policies on individuals, as well as take account of the impact on the wider public. In our Section 29 work, for example, when we review a regulator’s decision about a case we consider it in relation to the individual patients treated or seen by the health professional, and we also consider the wider public interest implications of the case.

I do not understand why it is considered necessary for Clause 5 to refer to “the public” rather than to patients, service users and other members of the public, or what additional benefit would be gained. It seems an unnecessary and unhelpful contraction that reduces our focus from individuals and population to population alone. I would be glad to receive an explanation from either the Minister or the noble Lord of why that is considered necessary. I must seek a strong assurance from the Minister that this change will never take the focus of the Professional Standards Authority away from patients and veer it towards the interests of professionals. When the Council for Healthcare Regulatory Excellence was established, and since then in launching the Professional Standards Authority, we have constantly emphasised the patient and user focus of our work, and we do not wish to put that focus at risk in any way.

I have further concerns about the Bill setting up competing objectives for the authority when we identify a poorly performing regulator, which is what our performance process aims to do. Currently, the authority has no role in promoting and maintaining public confidence in the professions regulated by the regulatory bodies. That is for the regulatory bodies themselves to do. Here again, I am concerned that the Bill conflates the role of the authority with that of the regulators. If the Professional Standards Authority is required to protect, promote and maintain the health, safety and well-being of the public by reporting the poor performance, followed, we hope, by improvement in the regulators, as proposed new subsection (2B)(a) requires, could it not also be said that the public would be better protected if the regulators’ poor performance was not reported, because highlighting it might harm public confidence in the profession it regulates and consequently increase the risk of people not seeking and trusting treatment and care when they need to do so? If a conflict between these two objectives arises, we need to be assured by the Minister that the Professional Standards Authority’s priority will always be understood to be to protect, promote and maintain the health, safety and well-being of patients and public, not that of the professionals who deliver the care.

Under current legislation our role is clear, as I have set out. I am sorry that the Bill raises questions about the clarity of that role, and I repeat that I think this has occurred because of muddling the role of the authority with that of the regulators. My aim is to ensure that the authority’s role is entirely understood to be for the benefit of patients, users and members of the public. I seek the Minister’s reassurance on the points I have raised.

That is all that I wish to say about Clause 5, but I cannot sit down without registering my dismay at the way in which the Bill is being handled in your Lordships’ House. We are all realistic enough to know about government hand-out Bills, but a government “take it or leave it” Bill is another matter. It is not acceptable to be told by officials, not Ministers, not only that the Bill cannot be amended but that we cannot have a Committee stage for the discussion, negotiation and scrutiny that is such a proud tradition in your Lordships’ House. There are some complex and difficult issues in the Bill that could affect patients for years to come. The parliamentary process should not be short-circuited for the convenience of business managers. We would be failing in our duty as a revising Chamber if we agreed to that.

13:52

[Lord Willis of Knaresborough (LD)]

My Lords, I am conscious of the late hour and will try to keep my remarks to a minimum. The noble Baroness, Lady Pitkeathley, raised a number of issues that I should like to deal with but was not going to. I should like to thank Jeremy Lefroy for bringing the Bill into the Commons, and my noble friend Lord Ribeiro for the excellent way in which he introduced it. He introduced a number of the issues in a very balanced way, particularly those relating to Clause 1, which are clearly going to cause some concern.

I fundamentally disagree, however, with the noble Baroness. One of the things that has bedevilled us, and which Clause 5 tries to deal with, is that our regulators in particular have operated in individual silos, as indeed has the PSA. To say that the regulator—particularly, the one that I know best, the Nursing and Midwifery Council—does not have as its first priority protecting the public is to underplay not only that regulator but every other regulator. She is quite right to say that we have moved away from that mark and that the professions themselves have been the main source of the regulators’ work. I have a great deal of sympathy for that view but, as my noble friend said in his opening remarks—indeed, what was said in the other place on Clause 5 —it is clear that, following Francis, Winterbourne View et al, we have to get this back in balance and that throughout our health and care system it is the patient who comes first, second and, indeed, last. The professionals and the regulator are there to serve that interest. I hope that my noble friend the Minister will say that from the Government’s point of view that is the case. I am pretty sure that that has been the case from the Labour Front Bench. In particular, during the passage of the Health and Social Care Bill and the Care Bill, which are now Acts, in our arguments, it was very strongly the role of the Front Bench constantly to put the patients at the heart of the agenda.

I should declare some interests. I am chairman of the Association of Medical Research Charities, and our interests interface. Not one of our members has given a notification that they are unhappy with this Bill. As the noble Baroness quite rightly said, that is not to say that they would not have liked a different Bill or a government Bill or a Bill which came in on the back of the Law Commission report in 2014. Having said all that, we are not getting a particular difficulty from that. I also declare an interest as the independent chair of Shape of Caring, which has been set up by Health Education England to shape the nursing and care workforce over the next 10 to 15 years. A lot of what is in this Bill will directly affect the work of nurses and care assistants, in particular, and I will come back to that.

I do not regard this Bill as perfect. It is far from perfect. I share the concerns that we are rushing through at the fag-end of this Parliament a Bill which has significant importance in terms of patient care and public safety. Having said that, when I decided late yesterday to speak in this debate, my argument is “Is the Bill worth the effort?”. I think that it is worth the effort. Members of this House will know full well, and established Members of the other House with us today will also understand, that to try to get this sort of legislation at the beginning of any Parliament and in the first Queen’s Speech is very difficult. If there is to be a strange coalition and perhaps then another Government, we may not see legislation of this sort for some considerable time. It is better to get something on the statute book and to start working on it. There are elements of this which are very important.

The Bill has the backing of the Government and the Labour Front Bench, which I hope is still the same. I am pretty sure that it has the backing of many Cross-Benchers. The purpose of the Bill is quite simple and clear. Its first priority is to link registrations with the CQC to a statutory body to prevent avoidable harm where there are regulated health and social care services. Secondly, it has to establish a consistent identifier for patients or clients through the whole of their healthcare journey, allowing information relevant to their care or treatment to be shared appropriately. Thirdly, it has to ensure greater consistency across and between regulators of health and social care with the primary objective of public safety. I do not think that there is anyone in this House or in the broad public who would not agree that it is right and proper that Parliament addresses those three priorities.

My only questions are: does this Bill say that? Does it do what it says on the tin? Is there a reality that those three objectives can be met? I am a layman in these matters but someone who works with the nursing and care sector at the moment. I believe that the answer is yes. The Bill is proportionate, logical and deliverable but it is only one step forward. It is part of a journey to create a more dynamic rather than a stationary regulatory system. The trouble with our regulatory systems is that they are stuck in time and do not move with the times. They need to be far more dynamic.

Clause 1 appears to have caused some problems with the BMA, certainly with the Berwick advisory group—or some members of it—and with the Health Foundation. I know that the noble Lord, Lord Turnberg, will address some of those concerns in his contribution so I will leave him to do it. While I fully accept the concerns which have been raised about Clause 1, there is, as the noble Lord, Lord Ribeiro, said, some exaggeration of what the Bill is trying to do.

The Bill, rightly in my view, seeks to make it a duty of the Secretary of State to require the CQC to impose regulations which cause no avoidable harm to patients. The Bill states just that; what it does not state, nor do the Explanatory Notes, is that we are trying to go for a legalisation of zero harm. There is no healthcare system in the world that could have zero harm framed within legislation—that is impossible. I hope that my noble friend will make it clear that that is not the intention. I hope, too, that he will go on to say that the current regulations from the CQC, which if I am not mistaken are about to come before the House—perhaps they have already gone through the House and I have missed them—have already put into statute exactly what we want to see happen in this Bill. So I do not think that there is a problem from the CQC either.

Clauses 2, 3 and 4, although again eminently sensible in their changes, cause one or two issues which I hope the Minister will be able to respond to. The idea of a common identifier is so obvious that you wonder why we did not put it into the Health and Social Care Act in the form that it is in. The idea of using of one’s national insurance number to deliver that seems sensible, but I am delighted that the Bill does not have it on its face because modern technology is moving so fast that there may well be within a very short time a totally different concept of a common identifier. The Bill will allow that to come in very effectively. Who knows? In future, babies might be chipped at birth so that there is a way of barcoding them as they go along their journey. Before the noble Lord, Lord Hunt, puts out a tweet somewhere, I should say that that is not a Liberal Democrat idea for the next election.

On data sharing, the latest response from Fiona Caldicott is right. The duty to share important information is as important as the duty to protect it. Getting that balance right is important. The fiasco over our attempts to share research data, which nearly derailed that important initiative, is in our minds. The fact that we constantly hear reports of data being lost or put in the post to somebody is something else that we have to take care of.

The area of the Bill that I am particularly concerned about and want to see through is Clause 5. I want to devote the last few moments of my speech to the work of the Nursing and Midwifery Council, which is faced with an impossible task at the moment. It spends an inordinate amount of its time dealing with disputes about people who have reported nurses or midwives for unprofessional conduct; it is mired in a morass of cases. The difference is this: the GMC has roughly 10,000 complaints about doctors each year. In 2013-14, 2,371 of them were investigated, and only 241—about 2.4%—were brought to full hearings. Compare that with the NMC where there were roughly 4,000 referrals last year, 75% of which have gone to full hearings. The NMC is spending an inordinate amount of time dealing with hearings, no matter how important or trivial they are, simply because that is the way the legislation is formed. Clause 5 allows us not only to have a comprehensive framework across all the regulators but gives them powers to streamline the way in which they deal with complaints. It is far more important to deal with the key point of keeping patients safe than with the huge amount of trivia which comes through the regulators.

All in all, this is not a perfect Bill, but is a Bill well worth putting on the statute book, and I hope that noble Lords will support it and give it a Second Reading.

14:06

[Lord Turnberg (Lab)]

My Lords, I, too, congratulate the noble Lord, Lord Ribeiro, on introducing this Bill in a characteristically clear and balanced way. I very much enjoyed hearing him. I find myself in the odd position of being extremely enthusiastic about the provisions of one part of the Bill and rather less than enthusiastic about other provisions, where I feel that there is a desperate need for amendment. I hope that the suggestion that we will lose the Bill if we think about amendments is not true and that we can see our way through that.

I shall begin with the bad news and say straightaway that I do not think it a good idea to try to avoid harm to patients by legislating for it. Of course, few can argue against the idea that we should do all that we can to avoid harm to patients by poor practice, neglect or abuse, least of all me, after a life in clinical practice. Certainly, after the Mid Staffs scandal, I can well understand the desire of the noble Lord, Lord Ribeiro, and the Government to be seen to be taking action, but there are three questions to be asked first. Is it necessary to enshrine this in law? Would such a law be effective? Would it have a negative effect on harm reduction?

The Health Foundation believes that the Bill might have a negative effect. It points out that if we want to avoid harm, which everyone does, the best way is through the intrinsic motivation and dedication of staff and senior leaders rather than through legal or regulatory levers. It prays in aid the Berwick advisory group, headed by Don Berwick, a significant figure in this field in anyone’s book. His group included extremely well qualified individuals whose views should at least give us reason to pause before going ahead with this legislation. It says that “zero harm”—its expression—is an impossible aspiration and to try to legislate for it is too simplistic.

Reduction in harm requires a continuing progressive process involving education, training and motivation from the top permeating through every part of an institution. Bringing the law into that at this stage is not terribly relevant and seems to be a knee-jerk response to the Mid Staffs inquiry, which is never a good basis for attempts at quick resolution. What we should be aiming at is better education and training and better supervision by those in charge. That at least has been shown to be effective in reducing harm. The Bill also talks of excluding harm that cannot be reasonably avoided, but we are then into the whole difficult business of trying to define reasonable avoidance. That needs time and expertise that is not readily available. We need to think that through more carefully.

Now for the good news: the part of the Bill that is very welcome is the desire to see a single identifier introduced for all patients in the NHS. I agree entirely with the noble Lord, Lord Willis, on this. The idea that the identifier will be used across the service so that information about a patient can be shared between all those in the NHS and social care who have to deal with that patient makes enormous sense. It makes for increased safety, too, if Doctor A knows what Doctor B has been treating his patient with. It is a common good. For example, when someone turns up in the accident and emergency department, doctors can find out rapidly what illnesses they have had and what treatment they have been given. However, there is a question about how we can include patients treated in the private sector. I hope that we will hear more about that at some point. I strongly urge that the national insurance number be used as the identifier. It makes more sense to use an existing number for the great majority of the population rather than dreaming up a new numbering system. However, of course, that does not have to be in the Bill itself.

It is of interest that the new National Information Board’s framework for action, which was published last November, states that the use of the NHS number as the primary identifier in clinical correspondence and for identifying all patient activities will be mandated in healthcare. The Independent Information Governance Oversight Panel will play a key role as national data guardian for health and care. This will ensure that proper scrutiny and challenge can be seen to be operating and will reassure those who feel that patient confidentiality will be threatened. A single patient identifier will also be extremely valuable as, hopefully, we move forward with care.data. As that gets off the ground, with the robust safeguards that we hope will be in it on patient confidentiality, the use of those data for medical research and clinical trials will be essential.

Here I declare my interest as scientific adviser to the Association of Medical Research Charities, of which my friend, the noble Lord, Lord Willis, is chairman. Our members are desperate to see research into advances in the treatment of the many diseases that they cover being aided by the use of patient data. As the noble Earl has stressed on many occasions, research is a key and central role for the NHS. There is little doubt that a single identifier, the NHS number, will be a valuable tool in achieving that desirable aim.

Returning to my concern about the difficulties of allowing the Bill to pass without amendment, I should say—in case I am seen as a maverick spoiler—that I am not alone in my view. Apart from the Health Foundation, I know that the Academy of Medical Royal Colleges, the BMA, the Medical Protection Society and, I fear, the Royal College of Surgeons have all raised aspects where amendments may be required. I know that the noble Baroness, Lady Masham, who cannot be here today, is unhappy with the Bill as it stands. I hope that we will be able to look at the Bill again and that the Government will come up with a mechanism by which we can consider amendments to the Bill. I have suggested one possible mechanism to the powers that be, but of course it is not up to me.

14:13

[Lord McColl of Dulwich (Con)]

My Lords, I thank Jeremy Lefroy for starting this Bill and the noble Lord, Lord Ribeiro, for bringing it here so expertly.

I would like to address one or two aspects and look back to how we dealt with them in the past. First, on the issue of protecting the public from avoidable harm, as a young house physician, the first problem I came across was a situation where a number of young ladies had attempted suicide—which of course was a criminal offence in those days. I was astonished to see the police hovering around, insisting on interviewing them. I explained to the police that the patient was not completely compos mentis and was in no fit state to be interviewed by anyone, certainly not the police. This created a great deal of trouble for me and I was summoned before the senior superintendent of the hospital and the local inspector of police. They harangued and shouted at me. I realised that they were just common bullies—and that one of my jobs was to protect patients from bullies.

We then came across the problem of operating on the wrong patient or operating on the wrong side. As a young surgeon I thought that there must be a way of preventing this, so I used an indelible pen to write the name of the operation at the site of the operation. Sometimes this presented problems, and arrows had to be put in to show roughly where it was, but it worked well. However, one day I went into the operating theatre and the anaesthetist said, “I wish you’d make up your mind which operation you’re doing on this patient”. I replied, “Look, I have written on his groin ‘right inguinal hernia’”. He said, “Yes, but look at this”, and he pulled the sheet down to reveal a dotted line across the front of the patient’s neck with a big arrow pointing at it, and on his chest, in big letters, were the words, “Cut here”. It was a tattoo that he had had put on 20 years before. Apart from that, the system worked very well indeed.

We developed at Guy’s Hospital something that had been done in many other hospitals. We would meet every week to discuss all the complications and deaths that had occurred in the previous week. Surgeons, junior staff, students, nurses and even some administrators would come. It was the most amazing and enjoyable meeting of the whole week, and it was relevant to what was going on. You could not hide anything because people knew what was going on. Complications would be presented, and we were very fortunate in having a very senior surgeon to chair these meetings. He had a good sense of humour and he was both brilliant and humble. When some poor junior surgeon would stand up and explain a complication for which he was responsible, the chairman would say, “That’s nothing, old chap. Only the other week…”, and he would go on to describe a complication for which he had been responsible. What he was cleverly doing was creating an atmosphere that was friendly and unthreatening, thus encouraging people to be absolutely honest. It was a great learning experience. It became rather like the general confession and was just as therapeutic.

We are all fellows of the Royal College of Surgeons, the Royal College of Physicians, the Royal College of General Practitioners and so on—but what is fellowship? Fellowship is sharing experiences, both good and bad. That is part of the fun of medicine. Another thing about those meetings was that they did not cost anything and we did not have bureaucrats from above directing and inspecting us. Local accountability is the answer.

The second thing I want to talk about is the appropriate sharing of information and the question of identification of patients. Years ago, I suggested that one solution to the problem of sharing information would be to give the patient his or her medical records. This was objected to on the basis that people could not be trusted and that they would lose them. A friend of mine gave away 20,000 medical records over a period of 20 years, and only three were lost. One was lost in a fire, one in a flood, and the third was eaten by the dog. That is a pretty good loss rate when we consider that some medical records departments were losing around 20% of their records at any one time.

Another thing we started doing was inviting patients to keep their operation note so that they could take it with them. One day I had to operate on a patient who had been operated on in Edinburgh in 1935. It was a complicated operation in the abdomen. I asked the patient if he had any idea what the surgeon had done. “Yes, I do”, he said, and he pulled from his pocket a piece of paper with the most beautiful diagram of all the plumbing that had been operated on inside his abdomen. The patient had kept the piece of paper safe for all those years.

The third thing I would like to talk about is something that has been aired quite a bit: will the Bill leave healthcare workers reluctant to treat or operate on poor-risk patients? Some years ago we conducted a big research project in four London hospitals. We measured the quality of care by what the doctors were doing to the patients—process—and the outcome of that. The third method was to ask a friendly, knowledgeable person in each of the four hospitals to put the consultants in order of merit. The three systems gave the same answer. People in a hospital know what is going on.

To make it fair, we measured 12 variables to find out whether the patient’s contribution to his illness would have any effect on the result of the operation. We recorded blood pressure, anaemia and other things, including marital status—whether they were married or had a stable relationship. Strangely enough, the only one of those variables that had any effect on the outcome of treatment was whether or not they were married or had a stable relationship. That was not an original finding; it had been established for some time.

The fourth thing I will talk about is the whole culture of blaming other people for what is going on. Of course, in medicine we have been guilty of this. If we could not establish the diagnosis in a patient, there was a tendency to say, “Ah well, it is in the mind. It is psychiatric”. Of course, that is quite wrong. Psychiatric diagnosis should be a positive thing, not a diagnosis of exclusion. We must not blame the patients for what is going on.

Of course, one thing that has happened in recent years is the obesity epidemic, and what have they done? They have blamed the people who closed the playing fields for children not getting enough exercise. But of course the obesity epidemic is simply due to people eating too much. That is perfectly straightforward.

The Bill concentrates on the vital overarching duty to protect the health, safety and well-being of the public —and these things we must continue to fight for.

14:22

[Lord Warner (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord McColl. I reassure him that before my NHS hernia operation two or three years ago I was very appropriately marked up in indelible ink as to where it should take place. To my pleasure, I found that it had taken place at that same spot—there may be others who thought that perhaps the surgeon should have moved somewhere further north and east.

I had originally told the noble Lord, Lord Ribeiro, that although I wanted to raise issues relating to children in the Bill, I was unlikely to want to table amendments. However, that was before I had read the Bill as carefully as I should have done and certainly before I had considered the amount of briefing that we have had, particularly about Clause 1, which I did not read until yesterday evening. These concerns have been enhanced by the points made by my noble friends Lord Turnberg and Lady Pitkeathley.

First, I will say a few words about children. In doing so, I declare an interest as the Secretary of State for Education’s children’s commissioner in Birmingham City Council. I should make it clear that my remarks are not based on that experience, although it has brought home to me the growing volume of children in need and at risk that many local authorities, health bodies, police and schools are having to deal with. It has brought home the importance of the flow of information between those agencies if children are to be protected.

I very much welcome the provisions in the Bill on consistent identifiers across health and adult social care. However, if this is being done for adults, why are children left out of the Bill? It is yet another example of how often, under all Governments, children get lost sight of in terms of the needs that must be addressed. They are less able to answer back and pressurise for change in some of these areas. It is of great concern, given what we know about children in need and at risk, that we have again in this piece of legislation forgotten about or failed to address the needs of a common identifier in the area of children’s services. I recognise that some progress has been made with the child protection information-sharing project which, if properly done and developed, would enable healthcare staff to see whether a child attending unscheduled care services had a child protection plan or looked-after children status. That is progress: it is better than where we were. Yet it is a long way from what is promised in the Bill—a single identifier for adults. It is a long way from that for children.

It is worth reminding the House of a sterling report by the noble Lord, Lord Laming, in 2003, after the Victoria Climbié disaster. In recommendation 18, he said there should be a proper, common identifier database of all children under 16 in the country, which agencies could know about and have access to when they came across children. This Government decided to abort the work taking place on that. That was a mistake. We are now, yet again, failing to deal with the issue of a common identifier for children that enables all agencies—not just health and care ones—who have a duty to protect children at risk and in need to do so. We need to think a lot more about why, if we are to do this for adults, we will not do it for children.

A number of bodies working in this area have already said to parts of the government machine, “In this age of digital technology, why do we not even consider producing a web-based database for children that could use a unique identifier to help the agencies do a better job?”. It is no good wringing our hands over child protection and exhorting agencies to work better together in this area if we then neglect to provide them with the tools and ability to access those data that would protect children. I regard that as a missed opportunity in this particular legislation.

I turn briefly to Clause 1, with particular reference to the letter and briefing mentioned by other noble Lords that came from the Health Foundation, drawing very much on the work of the Berwick advisory group. I recognise that the intentions of the architects of the Bill are entirely well meant. However, the duty in Clause 1 would, I suggest, go against all the evidence of what is required in the delivery of safe health and care services. I do not want to quote at length from that letter, which other noble Lords have mentioned. But I will put two quotes from it on the record because they summarise the problems with Clause 1.

The first quote is from the report of the Berwick advisory group, which concluded:

“While ‘Zero Harm’ is a bold and worthy aspiration, the scientifically correct goal is ‘continual reduction’. All in the NHS should understand that safety is a continually emerging property, and that the battle for safety is never ‘won’; rather, it is always in progress”.

The second quote is from a recommendation:

“To introduce this new law would not be supportive of the Berwick Advisory Group’s key recommendation for ‘the NHS … to become more than ever, before a system devoted to continual learning and improvement of patient care, top to bottom and end to end’”.

If we are not going to listen to people who put a lot of effort into study in this area and take account of what they say in framing legislation, that is a poor show. If we do not think that it is worth giving the time to scrutinise the legislation and pay attention to views being offered in a very professional and politically independent way, that is an even poorer show. We cannot rush through legislation when we choose not to give enough time to draw on that expertise and use that information.

It is a shame that we are trying to rush on with the Bill in this way. We need to stand still and think about how we can give proper time to a well intentioned piece of legislation. If not, if people want to rush on with this, they should consider taking out of the Bill the provisions that are controversial and not generally agreed.

There is a lot of support for a common identifier, if the Government want to put that on the statute book. I say “the Government” because although the Bill is a Private Member’s Bill, it is being given every encouragement by the Government. Like my noble friends, this is the first time that I have ever been approached by a civil servant to encourage the progress of a Private Member’s Bill, almost implying that I am somehow failing in my duty if I do anything to impede it. That is not the way to proceed. The Minister needs to give us some assurances about what is the Government’s position on and attitude to the Bill and whether the Government want to provide some of their time to give us proper scrutiny of the legislation in Committee.

I hope that the noble Lord, Lord Ribeiro, will not take that as a personal attack on him; it is not. He is honourably trying to progress the Bill for good reasons, but we must ask some questions about the Government’s position and whether they will provide the time to enable us to have proper scrutiny of all parts of the Bill.

14:33

[Lord Elton (Con)]

My Lords, I am the least qualified contributor to the debate, so I shall make my speech suitably short as an act of humility in deference to those who are so much my senior in this field. It was the Mid Staffordshire disaster and the reports following it which focused public attention on the risks to patients in the health service in this country. It is appropriate that it was my kinsman, Jeremy Lefroy, the honourable Member for Stafford, who brought the Bill to the other place. I congratulate him and my noble friend on the style in which they have done it.

I share the anxiety of many of your Lordships about the fact that it has to be debated in a truncated form. We are diminishing the effectiveness of this House if we do not give it the full treatment. On the other hand, we have to balance the possibility that there will be no opportunity in the next Parliament—depending on what political colour emerges from the election—and that it is better to take what we can get than to hope to get a lot more.

In trying to express that, I was looking for a simile. When my eye fell on the mammoth legislation proposed by the law commissions, I realised that the simile for me is that the Bill is like a dolphin leaping just under the bows of a mammoth tanker. We need the mammoth tanker but the dolphin has its own value, in ways which my noble friends have already so adequately explained.

Two phrases caught my attention in the debate. The first was the need for a culture change. I am not actually sure what the other was. However, it seems that we are looking at the mechanisms to regulate people in the health service but not looking at the people themselves. What is needed for the prevention of harm is that first of all qualities laid down by the lady with the lamp, Florence Nightingale: tender loving care.

When I read stories of elderly people and demented people being brutally treated, I recall my very short time as a Minister in the Department of Health, when I was given special responsibility for mental health—for only six months, which was probably a good thing. I visited a large number of hospitals and wards specialising in mental health and what astounded me was the patience of the people looking after the affected ill. When I hear of the very different treatment of people with mental afflictions now, particularly in old people’s homes and nursing homes but elsewhere as well, it strikes me that that conduct could not have been perpetrated by the people whom I saw nursing in those institutions.

Apart from these mechanisms for regulating people in the service, what we need is some procedure to identify those who are fitted for particular parts of that service. The person who is perfectly adequate, even brilliant, as a theatre nurse might find that her patience snaps after six months looking after people who are doubly incontinent, incapable of speech or intermittently violent. That must go also for those dealing with people with dementia, who are unable to recall who or where they are and ask the same question 75 times a day. That requires very special characteristics, which need to be identified, and the people who have them need to be directed where the work is most difficult.

I hope that the Bill gets on to the statute book. While I understand the enthusiasm of those who want to make it perfect, I repeat my position: it is very much better than leaving it to chance. All the authorities should be singing from the same hymn sheet in the coming years, and the enormous legislation proposed by the law commissions should be enacted as soon as possible. I have detained your Lordships long enough. I might say that I have come to the place where there is a dotted line on my paper, which says “Cut here”—and, unlike my noble friend, I will.

14:38

[Lord Young of Norwood Green (Lab)]

My Lords, I do not usually enter these debates because I do not necessarily feel that I have the knowledge to do so. I was impelled to do so—I must admit that it was a fairly late impulse—by the Bill’s title and then having a cursory glance at its substance. I was not expecting much humour in this debate but I am indebted to the noble Lord, Lord Willis, for the idea of chipping at birth. I have recently had that done to a cocker spaniel; I never thought of introducing it to my children when they arrived. It might not be a bad idea to keep track of them but I doubt that it will get through.

I wanted to speak in this debate because, apart from the matter of my own personal interaction with the NHS—I say to the noble Lord, Lord McColl, that I do not know whether they used indelible ink, but thank goodness they got the hip implant on the correct side, the left—whether or not the Bill goes through, there are still fundamental changes that all of us want to see take place in the health service, and which have been touched upon throughout the debate. To return to the noble Lord, Lord McColl, it strikes me as important to identify best practice, and I cannot help wondering why it takes so long for it to permeate. The noble Lord gave his example of how to ensure that accidents do not happen in the operating theatre. One that I have heard about recently is a tick-list system, rather like the one that they use when flying aircraft. It says that everyone in the operating theatre identifies who they are—I think that probably helps—and knows the nature of the operation, and so on; I shall not go through all of it.

Why is best practice not being extended at a more rapid rate throughout the health service? After all, we know where some of the best hospitals are; we can identify their performance. When I as a lay person enter hospital, perhaps because, as I have been recently, I am looking after an aged relative, I can see best practice. I can see when they are paying attention to whether their patient is eating his food or getting enough liquids. I can see whether they attempt to get a patient who has been immobile out of bed and exercised regularly, so that he or she does not leave hospital in a worse state than when they entered it. There is a danger of that, after all: they go into hospital still in control of their bodily functions but sometimes leave with a catheter and, if they are really unlucky, with double incontinence. It is so difficult to get this right.

I also have experience of some hospitals where one ward is operating to perfection but in another you wonder whether you are in the same hospital. Why does that come about? My view, and I think that my noble friend Lord Turnberg identified some of the issues, is that, apart from the intrinsic dedication of staff, which we hope we will experience, training and supervision are key. If the people in charge are just talking the talk and not walking the walk—if the ward sister or matron is not actively engaged in going around their ward, talking to patients and observing the culture—it will not happen.

Someone talked about changing culture. Anyone who has studied organisations knows that changing culture is the hardest thing to achieve, and in an institution as large as the NHS it is doubly so. I hope that the Minister will give us some assurance on the inculcation of best practice. The noble Lord, Lord Ribeiro, talked about wrong sites and wrong implants. The thing that I reflected on was not only the poor patients but the sheer cost to the NHS of such claims. We dealt with that recently in an Oral Question. I hope that the Minister will consider that.

I could not help but identify with my noble friend Lord Turnberg when he talked about the non-inclusion of children. I had not carefully looked at that measure before I realised that that was the case; I was thinking about NI numbers as an identifier when I suddenly thought, “Well, that won’t apply to children anyway, unless I’m mistaken”. I think that he is right about that criticism.

I do not feel qualified enough to say whether the overall impact of the Bill would be either negative or positive; I can see the positive points in it, but do not want to get caught up in the semantics of whether there was zero harm or reduction of harm because I do not feel qualified to be able to distinguish between them. We all share the same common objective that is in the Hippocratic oath: “Do no harm”. As a general dictum, if you like, I embrace the point made by the noble Lord, Lord Elton, about the perfect being the enemy of the good. As a trade union negotiator I have embraced more compromises, which sometimes I have described as “shoddy”, than have most of us—although most of us here have engaged in that. However, I never really regarded them as shoddy but as a natural part of any negotiation. Therefore I will leave it up to the experts to determine that.

I will say only one thing to the Minister: it is a worry that somehow, despite the excellent intentions of the Bill, we have not created enough time to ensure some amendment that might make it much more acceptable to the whole House.

14:45

[Lord Hunt of Kings Heath (Lab)]

My Lords, I declare an interest as president of GS1, which is the bar-coding association of the United Kingdom. I am sure that the suggestion made by the noble Lord, Lord Willis, will be given every consideration it deserves. I, too, congratulate the noble Lord, Lord Ribeiro, on bringing the Bill to your Lordships’ House. He knows that the Opposition support the Bill, and we will adopt a constructive approach to it.

However, I would like the noble Lord and the noble Earl, Lord Howe, to clear up this point about the remaining stages of the Bill in your Lordships’ House. My noble friend Lady Pitkeathley made a very important point. I do not understand why there is not time to give the Bill proper scrutiny. This is essentially a government Bill; it is therefore up to the Government to find the time. We know that this House has plenty of time until Prorogation on 26 March. At the moment, the noble Earl and I are enjoying many Questions for Short Debate, and I understand that there are many more to come. That is because there is virtually no legislation left. The Government say there is not time, but that is not so. I offer our good offices through the usual channels to see whether we cannot find time for a proper Committee and Report stage. That would be the right path. I understand what the noble Lord, Lord Elton, said—that in the past he has been very strong about the role of the House of Lords in the scrutiny of legislation, and has criticised the way in which Governments have tried to get legislation through. We have to be cautious about this. I want to see the noble Lord get his Bill by the end of this Parliament, and we will do everything we can to help, but the evidence that has come particularly from the Berwick committee shows that there should at least be some debate, especially on Clause 1, although there are other issues as well.

Some debate on Clause 1 would be helpful. Although we support the clause, it would be helpful to hear a little more from the noble Lord about what is meant by “zero harm”. The noble Lord, Lord Willis, says that those words are not actually used in the Bill. The problem is that those words were used in the briefing on the Bill, and now it has come to be known as “zero harm” in the health service. It may be that that is part of the issue around Clause 1—not so much what it contains as how it is perceived. I hope that we can clear that up as well as we go through the Bill.

I have one question for the noble Earl. As he knows, I and the noble Lord, Lord Patel—he cannot be here today but will be for later stages—have both chaired the National Patient Safety Agency. We encouraged NHS bodies to report near misses and patient safety incidents. I assume that many of those incidents would come within the definition of “avoidable harm”. Given that, can the noble Earl say whether that means that, once the legislation is passed, almost every NHS body in this country would fall foul of the provision? If that is so—and it might be argued that it should be so—does he think that there is a potential perversity in that people will try to hide these incidents in the future, whereas our whole learning experience, which came from the airline industry, is to encourage people to own up to mistakes? It is a very important point. I think it lies at the heart of what the noble Lord, Lord McColl, said earlier and, indeed, the evidence which we have received from the Berwick advisory group.

My noble friend Lord Young made a very important point about good practice, and I am not sure whether the Bill helps one way or another. He mentioned the WHO checklist in dealing with wrong-site surgery, which has a lot of support from various institutions, including the Royal College of Surgeons. We know that not every surgeon is prepared to do it; there is no question but that some surgeons refuse to take part in those checklists and that sometimes, if they do, they do not take part with wholehearted enthusiasm. Whether this Bill helps that or not, I would be interested in hearing from the Minister how he thinks we can encourage very powerful clinicians who, I suspect, think that it is beneath them to take part in what they call a box-ticking exercise. How can we encourage them to do so? My noble friend is absolutely right—one of the besetting sins of the health service is its inability to spread good practice quickly. That is why we invented NICE.

I find it really disappointing that, in relation to NICE technology appraisals, as an example, even now many clinical commissioning groups refuse to implement them, despite a legal requirement to do so, and have set up their own silly little committees to try to second-guess what NICE is doing. I know that that goes outside the Bill, but it does answer my noble friend on a really important issue that we need to tackle. We all know that we have excellence and we have problems in the health service, and the scale of transfer of excellence to the health service is just too slow.

On the subject of data-sharing, as the Minister knows, the Opposition are very supportive of the sharing of patient information, which is clearly in the best interests of patients. Indeed, we took through the original provision in, I think, the 2003 health Act, although there were many others that we might have taken it through in, to allow for this to happen. The care.data project ran into a few problems, as we know, and has now been rolled out in a kind of pilot way in order to secure public confidence. But I think that it would be fair to say that there are still concerns about whether, in the end, the public and GPs are going to be prepared to sign up to this. As he will know, we think that the National Data Guardian must be made a statutory post. It was the subject of amendments in the other place. I am delighted that Dame Fiona Caldicott has become the National Data Guardian; that is an excellent appointment, and the Government should be congratulated on making it. We know that the Secretary of State for Health has said that her appointment would be put on a legal footing at the earliest opportunity—and this is the earliest opportunity. Surely, this is the time to do it.

Noble Lords will have received briefing from Mencap —I certainly have—about the information-sharing clauses. Mencap wants Clause 4 amended so that the health information includes the person’s communication needs, which means that professionals are more aware of the ways in which people can communicate their health and care needs. Perhaps the noble Lord, Lord Ribeiro, could give some consideration to that.

On the issue of children and why they are not included in terms of a national identifier in the Bill, I assume this is because of the split in government responsibilities between the Minister’s department and that of another department. Perhaps that is not the case, but it would be interesting to know about that. On national insurance numbers, as my noble friend Lord Young whispered to me, children of course do not have national insurance numbers until I think the age of 16. That may be a problem.

I come back to Clause 5. A number of noble Lords have raised the issue of why provisions have not yet been brought forward relating to the Law Commission’s draft Bill. We all know why the Government was not prepared to bring forward a health Bill in the fifth Session—not even a draft Bill—which is why the noble Lord, Lord Ribeiro, has very kindly taken on a Private Member’s Bill. It has been very disappointing; at the very least we could have had pre-legislative scrutiny, which would have been very helpful. I am not going to suggest that we amend the noble Lord’s Bill with 300 clauses suggested by the Law Commission, but I hope that the noble Earl, Lord Howe, will be able to say something about what the Government are going to do with those clauses.

My noble friend Lady Pitkeathley raised some interesting points on the PSA and the new provisions. I take what the noble Lord, Lord Willis, said, but I hope that the noble Lord, Lord Ribeiro, will answer my noble friend’s point about whether there has been some misunderstanding of the PSA’s role. Next Wednesday we debate the Deregulation Bill. I have tabled an amendment that seeks to take a number of health regulators out of the economic growth provisions because I believe that they will inhibit the effectiveness of those health regulators. From meetings we have had with the Department of Health it has been made clear that the PSA is included, but not the regulators—the GMC, the NMC et cetera. I wonder whether there is some confusion in the noble Earl’s department about what the role of the PSA is. My noble friend Lady Pitkeathley pointed that out very well.

We support the principle of the Bill. I congratulate the noble Lord, Lord Ribeiro, on bringing it to your Lordships’ House. I wish to see it make progress, but we need to have proper scrutiny as well.

14:57

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I very much welcome the debate on this important Bill. I thank my honourable friend in another place, Jeremy Lefroy, and my noble friend Lord Ribeiro for their stewardship of this Bill to improve the safety of patients and protection of the public. A productive debate was had in the House of Commons, with support for the Bill from all sides. Parliamentary time is limited. Speaking for the Government, I hope that we can get this Bill on to the statute book as soon as possible.

We must never forget the terrible events that occurred at the former Mid Staffordshire NHS Foundation Trust, which demonstrated what can happen when providers put other priorities before safety. As highlighted by the Francis inquiry report, we have much to improve in patient safety and to avoid a repetition of those tragic events. The Government have thrown their full support behind this Bill in our continuing efforts to improve patient safety and the quality of care. I turn now to the Bill and each of its clauses. I will address most of the concerns from noble Lords; I will write on the others that I am not able to cover.

Safety of care must be the focus of healthcare providers at all times. Regulation by the CQC plays a vital role in assuring that providers are focused on safety and are taking steps to reduce avoidable harm. Section 20 of the Health and Social Care Act 2008 currently provides the Secretary of State with a power to include safety in registration requirements with the CQC, but this is no more than a discretion. It would equally be in the gift of the Secretary of State to put a regulatory system in place for providers of health and adult social care that did not cover safety. The first clause in the Bill will remove that discretion and instead place a duty on the Secretary of State to make CQC registration requirements include safety of care. This is consistent with the Government’s continuing effort to reduce avoidable harms and to ensure services are provided in a safe way.

Parliament has recently passed new requirements for registration with the CQC, which include new fundamental standards. Regulation 12 of the fundamental standards states that,

“care and treatment must be provided in a safe way”,

and it sets out a number of steps that providers have to take in order to reduce the risk of unsafe care. Where a provider fails to meet this registration requirement in a way that results in avoidable harm to a service user, the CQC will be able to bring a prosecution against that provider. It is the Government’s sincere intention that the CQC will make use of this important power to hold providers to account for the most serious failings in care.

It is the Government’s view that this new fundamental standard, which comes into force in April, already meets the requirement of the Bill that we are considering. It is important to emphasise that the Government do not intend to amend the registration requirements in response to Clause 1.

I am aware that concern has been expressed regarding the use of the phrase “avoidable harm” in this clause. The Health Foundation, for example, as we have heard, has argued that Clause 1 will draw time away from understanding risk and preventing harm. I do not share that view. Part of being able to assess the risks of receiving care and treatment in order to prevent harm in future involves examining past performance and understanding the causes of past incidences of harm. It is vital that an organisation can learn from its errors in order to improve services to patients and service users.

Furthermore, I say to my noble friend Lord Willis and to other noble Lords that whatever the perceptions, “avoidable harm” equates not to “zero harm” but to harm that can reasonably be avoided. For example, where harm is an inherent part or risk of a regulated activity and it is in the best interests of the patient to receive that regulated activity, this clause would not seek to prevent that activity. However, in providing the service in question, the provider should still take reasonable steps to prevent any harm that is avoidable, such as harm from the use of unclean instruments. I say to the noble Lord, Lord Warner, that this is exactly about providers seeking a continual reduction in harm, given the intrinsic risk that exists in many treatments.

I hope that noble Lords will support the objective enshrined in this clause of causing no avoidable harm. This clause places a duty on the Secretary of State to impose requirements that he,

“considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided”.

The duty on providers is not imposed by this clause: rather, it will be imposed by the regulations that are issued under this clause. I perhaps need to emphasise that to the noble Lords, Lord Turnberg and Lord Hunt. The regulatory levers are already in operation through the CQC registration requirements on the safety of care. The duty set out in the Bill will not change those regulatory requirements. Indeed, from April a regulated provider may be prosecuted by the CQC if the way in which it provides care or treatment causes avoidable harm to a patient or service user, so this is already the case.

The noble Lord, Lord Young, referred to following best practice. The CQC can take relevant best practice into account when assessing a provider’s performance against registration requirements and in reaching a judgment about rating services. Indeed, the CQC’s guidance to registered providers of health and adult social care about complying with the regulations will point to such best practice.

Turning to Clauses 2, 3 and 4, the sharing of relevant information in a timely and accurate manner facilitates the provision of integrated care and treatment, tailored to an individual’s needs and wishes. This information sharing is essential to the delivery of safe and high-quality care. Dame Fiona Caldicott, in her review of information governance, found a culture of anxiety that prevents information sharing, and the current legislative landscape was found to be a contributory factor. The review recommended that the duty to share information should be as important as the duty to protect patient confidentiality. The information-sharing provisions in the Bill seek to create parity between the need to protect information and the need to share it as part of care.

The second clause in the Bill will place a duty on providers and commissioners of publicly funded health and adult social care to record and use a consistent identifier in health and care records and correspondence. This duty will apply only in the best interests of the individual patient and in the direct provision of their care. A long-standing priority of the Department of Health has been to establish the universal use of the NHS number as a consistent identifier when individuals move between care providers. This will support the integration of medical records, reduce errors and facilitate the co-ordination of care. It is our intention that the NHS number will be specified in regulations as this consistent identifier. Others in the debate referred to the national insurance number, but the NHS number is already a well established identifier and the proportion of people in England without an NHS number is very small. Of course, the number of those without a national insurance number is rather greater.

The noble Lord, Lord Turnberg, asked whether this should not apply also to the private sector. The duty to use the NHS number applies only to providers and commissioners of publicly funded health and adult social care. This means that it will apply to NHS commissioners, local authority commissioners and providers of health or adult social care that are public bodies, or are contracted by an NHS or local authority commissioner. Private sector providers would be subject to the duty only in respect of care they provide that is made pursuant to contracts with NHS commissioners.

The third clause in the Bill would place a duty on providers and commissioners to share information. Where it is in the patient’s best interests, providers and commissioners within scope will be required to share relevant information with staff within their organisation, and with other providers and commissioners directly involved in that person’s care. As my noble friend Lord Ribeiro explained, this will reduce the burden of moving between care settings and having to tell your story over and over again. This is especially true in the case of older people, and people with dementia and other complex conditions. It is the intention of these clauses that using a consistent identifier, and having a duty to share information, will help to ensure that health and care professionals will have the information they need to deliver high-quality care. I must stress that the duties within the Bill are strictly limited to the sharing of information for the purposes of direct care and only in the individual’s best interests.

Turning to Clause 4, these duties will not extend to providers and commissioners of children’s social care or the providers and commissioners of children’s healthcare, for which the Department for Education is responsible. I know that concern has been expressed about this exclusion, not least by the noble Lord, Lord Warner. I understand those concerns. Requiring children’s education and social care settings to use a single identifier would extend the scope beyond that of the Health and Social Care Act 2012, which this Bill seeks to amend. As the noble Lord knows, the statutory framework for children’s social care is different, with the DfE the lead department and Ofsted the regulator. Responsibilities have already been placed on professionals and agencies working with children to share information, particularly where there are safeguarding concerns.

There may be benefits in extending the use of a common identifier from the NHS to wider children’s services but, as yet, these benefits have not been assessed against the costs and burdens on local authority children’s services. Implementing a duty to use the NHS number could create significant burdens on schools, which would have to collect and record NHS numbers from all pupils when they enrol in the school. That is why the Department for Education has committed to undertaking an evidence-gathering exercise to fully understand what the impact of using a consistent identifier would be for these types of provision. This exercise is expected to report by the end of the year.

I now come to the fifth clause and the schedule, which will bring in a consistent overarching objective for both the Professional Standards Authority and the regulators of certain health and care professionals, including dentists, nurses, midwives and opticians. This will ensure that public protection is at the heart of what the Professional Standards Authority and these professional regulators do. This overarching objective of public protection will involve the pursuit of objectives in relation to protecting, promoting and maintaining the health, safety and well-being of the public, and promoting and maintaining public confidence in the professions covered by the Bill and proper professional standards and conduct for members of those professions. This measure will also ensure that regulatory body panels dealing with the disposal of fitness to practise cases—that is, making a final decision or considering appropriate sanctions—will have regard to that overarching objective.

The noble Baroness, Lady Pitkeathley, and my noble friend Lord Willis expressed disappointment at the lack of a government Bill on professional regulation, and I think that that disappointment is widely shared. We of course welcome the law commissions’ 2014 report but, in the absence of a government Bill to implement its recommendations in this Parliament, we have taken the opportunity to consider the report and to work closely with the regulatory bodies and the PSA to build on the important work that the law commissions have done. We accept the vast majority of the recommendations and the Government remain committed to legislate on this important issue at the earliest opportunity when parliamentary time allows. I am therefore particularly pleased to throw the Government’s full support behind this Bill, which seeks to implement in part and for some of the regulators two of the law commissions’ recommendations.

The noble Baroness, Lady Pitkeathley, asked how the PSA can have an objective to promote confidence in the professions when one of its functions is to uncover poor performance. Let me explain this a little further. Under the new overarching objective, the PSA and the regulators will have to act in the interests of public protection. The reference to maintaining public confidence is bounded by this overarching objective of public protection and does not mean that the PSA or the regulators should be actively promoting the reputation of the professions, as this does not necessarily serve public protection. Rather, it is concerned with conduct, performance or behaviour of individual members of a registered profession in so far as this threatens to undermine confidence in the profession as a whole, to the extent that people may be deterred from seeking the treatment or care that they need.

It is clear to me that a robust and transparent way to challenge regulators’ decisions, while it may call into question decisions in individual cases, can only contribute to maintaining wider public confidence in the professions as a whole. In some instances, that may mean that poor performance is uncovered. Sometimes it is necessary to do this to increase public confidence in the professions—and of course that is only right. This is not about requiring the PSA to maintain public confidence in individual professionals or even in the regulators, but confidence in the professions. I hope that that is helpful to the noble Baroness.

The overarching objective does not create any additional functions for the PSA. The PSA is an independent body which oversees the work of the nine regulators of health and social care professionals. Its functions remain unchanged and include auditing investigation stage decisions of the regulators’ fitness to practise procedures, referring final fitness to practise disposals to the relevant High Court where necessary and reporting on the performance of the regulators.

Under this Bill, while discharging particular functions in relation to the regulators—that is, promoting best practice in professional regulation, formulating principles relating to good self-regulation and encouraging co-operation between the regulators, and between them and other bodies that exercise corresponding functions—the PSA must have in mind the overarching objective of public protection. This may involve the PSA, in its role as overseer of the regulators, taking such appropriate actions as may be available to them in the circumstance that regulators have not acted in accordance with their own overarching objectives.

I know that the PSA is particularly concerned with consistency in the legislation governing regulation of health professionals. Ensuring consistency of purpose in professional regulation and how it is overseen through the introduction of a consistent overarching objective was a key recommendation made by the law commissions in their review of regulation of health professionals published last year.

I also know that the department and the PSA share the common principle that any legislative change must have public protection at its core. I would just say that the definition of “public” in the Bill encompasses patients, users of healthcare and social care, and,

“other members of the public”,

as defined in the PSA’s existing objective. I say to the noble Baroness, Lady Pitkeathley, that my officials are happy to continue the discussions which I know have been conducted recently in order to give any further clarification that might be helpful. As the Government set out in our response last week, we support this principle and we hope to see public protection placed clearly and firmly at the heart of professional regulation through this Bill and through parallel secondary legislation for the GMC, which will shortly come before this House.

I should like to clarify the effect of Clause 5 and the schedule for my noble friend Lord Willis. The Bill introduces a duty on regulators’ panels and committees. It does not affect the regulators’ fitness-to-practise processes. My noble friend mentioned the NMC’s fitness-to-practise caseload. I reassure him that the department has recently taken forward secondary legislation in relation to the NMC to help it to carry out its fitness-to-practise and registration functions more effectively. I am happy to write to my noble friend if he would like further and better particulars.

At the risk of overstaying my welcome at the Dispatch Box, I hope that I may be allowed to cover briefly a point which arose as the Bill passed through the House of Commons and which I know is of concern. The BMA has raised concerns about the requirement for fitness-to-practise panels and committees to consider “public confidence” when making final decisions about the application of the term “well-being”. I understand that the BMA recently had productive discussions with my honourable friend the Parliamentary Under-Secretary of State for Health, Dr Dan Poulter, and has been much reassured by the intention for the overarching objective to be set out in secondary legislation for the GMC and in this Bill for other regulators. Indeed, the BMA wrote to my honourable friend yesterday to confirm this and to seek further assurances about the form that guidance might take and how it might clarify how regulators’ panels and committees should apply the overarching objective in practice, particularly the interpretation of the terms “public confidence” and “well-being”. These concerns relate particularly to issues raised by a recent GMC consultation on sanctions guidance.

Noble Lords will understand that the GMC’s handling of fitness-to-practise cases is not within the scope of this Bill. However, these issues are likely to be relevant to the other regulators who will be subject to the new, overarching objective. Of course, I cannot say on behalf of the regulators how they should give guidance on their internal processes, but I will ensure that my officials raise these issues with the professional regulators when considering the implementation of the objectives, as part of both this Bill and the GMC legislation, and can confirm that the GMC will seek views on implementing its secondary legislation through a public consultation.

I think that that is enough from me. I will of course write to noble Lords, as I have promised, on other matters.

[Lord Warner]

Will the Minister clarify something that he said in relation to what I said in my speech? He said that the Bill cannot cover children in relation to health and social care. I have just read the Long Title and the Title. I can see nothing there that specifies particularly adults or excludes children. I would welcome it if he could write to me to explain what the legal judgment is as to why an amendment that relates to health and social services only—not police, not education—should not be included in the Bill in respect of children.

[Earl Howe]

I would be happy to do so.

[Lord McColl of Dulwich]

Before the Minister sits down, could I ask him about the WHO checklist? When I go into an operating theatre, the operation cannot start until that list is completed by the surgeon, the anaesthetist and the nurses. Could that be put into regulations?

[Earl Howe]

My Lords, I am sure that anything is possible, but I would hesitate before giving a commitment along those lines because it seems to me too granular to be included in statutory regulations rather than in guidance or best-practice manuals.

[Lord Rea (Lab)]

Perhaps I may be the third Member of the House to ask the Minister to answer a question before he sits down. There has been a lot of talk about there being no government time properly to discuss many issues that have been brought up in this debate. The Minister did not answer the point made by my noble friend Lord Hunt, but there is very little government legislation in the pipe now and time could almost certainly be found. I accept that Private Members’ Bills are normally considered only on Fridays—there are not very many Fridays left—but, as this Bill is a quasi-government Bill, I feel that perhaps the Government could make time for it.

[Earl Howe]

My Lords, I am sure that the noble Lord is aware that the timetabling of business is not a matter for the Government. My understanding from the usual channels is that Private Members’ Bills cannot be given government time or priority treatment. However, I have no doubt that, having listened to the comments made in this debate from all sides of the House, the usual channels will wish to have further discussions.

15:20

[Lord Ribeiro]

My Lords, I thank all noble Lords who have taken part in this interesting debate. I very much hope that the Minister has addressed most of the questions that have been raised. I know that the concerns of the noble Baroness, Lady Pitkeathley, have been addressed. She made a clear case on the confusion about the role of the PSA as an auditor as opposed to a regulator. That needs to be borne in mind.

The noble Lord, Lord Willis, was clear that this Bill is proportionate, logical and deliverable. That is the point—it is deliverable. We have heard a lot about the Berwick advisory group, which has flown the kite of zero harm. It probably has not helped that in the immediate period after Mid Staffs we were keen on some sort of zero harm. Earlier, I referred to Mr Ken Lownds and his interest in patient safety. He has been one of the champions of zero harm. As a surgeon, I know that it is an aspiration that ultimately, if the systems are in place, it is possible to head towards. Although the Berwick advisory group says that,

“zero harm is a bold and worthy aspiration”—

not an intention but a “worthy aspiration”, I say to the noble Lord, Lord Turnberg—it is about timing and the pace of change. It is something that we should aim for, but in order to get there we have to make sure that when hospitals are inspected by CQC it finds that the systems are in place to ensure that harm does not occur. That is the whole purpose of the Bill. The noble Lords, Lord Turnberg and Lord Warner, were very exercised by this area and I hope that we have gone some way to address it.

The noble Lord, Lord Young, raised a good issue. I meant to put it in my speech, but I thought that my speech would be too long—I think that I said to the health team that it might take anything up to 20 minutes, but when I heard what was going on this morning I decided to reduce it. The noble Lord made a good point and I am glad that he did, because those who listened to Dr Atul Gawande, the 2014 Reith lecturer, know that he was the architect of the checklist, which he introduced with the WHO. I remember being approached by Sir Liam Donaldson when I was president of the Royal College of Surgeons to see whether the college could sign it off. I thought that it was something to be used in developing countries, not in the UK, but typically the NHS instituted it. There is a question of whether it should be legislated for. In answer to my noble friend Lord McColl, in surgery it is the recommendation of the college and all the specialist associations that surgeons and anaesthetists should follow the checklist. The difficulty always comes with emergencies, which is where legislation may be difficult—if somebody is bleeding to death, there is not time to sit and have a chat about whether we have everything that we need before we start, which is what that involves.

The noble Lord, Lord Hunt, referred to Clause 1 and zero harm. We have dealt with that and the near misses and I think that that deals with the point about the checklist, too. As I said, I am chairman of CORESS, which is to do with having confidential reporting of near misses so that we can advise surgeons on how to avoid them happening again, using the airline industry as a template of how to avoid harm. That is what all this is about: avoiding harm.

Finally, the noble Lord, Lord Hunt, made a point about Mencap. I take on board the fact that Mencap would like see to see an amendment so that the health information of all those who are poor communicators can be taken into account, as we tend to look at people in terms of the information that they give rather than how they give that information. I wonder whether that could be put in guidance when the legislation comes through. Certainly it will be looked at.

I again thank everyone who has taken part in the debate for their contributions, which have been most helpful. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.